Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FTD v NSW Ambulance [2024] NSWCATAD 283 Hearing dates: 16 August 2024 & 19 August 2024 Date of orders: 2 October 2024 Decision date: 02 October 2024 Jurisdiction: Administrative and Equal Opportunity Division Before: M Riordan, Senior Member Decision: (1) The respondent's reviewable decision of is affirmed pursuant to s 63(3)(a) of the Administrative Decisions Review Act 1997. (2) Pursuant to s 55(2) of the Privacy and Personal Information Protection Act 1998, the Tribunal decides to take no further action. Catchwords: ADMINISTRATIVE LAW – PRIVACY – personal information – solicitation - collection – lawful purpose – disclosure – disclosure within an agency – confidential information – no disclosure Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Ambulance Services Act 1990 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Privacy Act 1988 (Cth) Privacy and Personal Information Protection Act 1998 (NSW) Cases Cited: AFC v Sydney Children's Hospital Speciality Network [2012] NSWADT 189 AFP v Hunter New England Local Health District [2012] NSWADT 141 AFU v Sydney Local Health District [2012] NSWADT 197 AIN v Medical Council of New South Wales [2017] NSWCATAP 23 Ace v State of NSW (TAFE Commission and Det) (No 3) [2011] NSWADT 154 BFP v NSW Ambulance Service [2015] NSWCATAD 39 BNQ v South Eastern Sydney Local Health District [2015] NSWCATAD 156 BYW v Commissioner of Police, NSW Police Force [2015] NSWCATAP 270 CWS v NSW Department of Education [2017] NSWCATAD 287 CYL v YZA [2017] NSWCATAP 105 Camilleri v Commissioner of Police (NSW) [2102] NSWADT 5 Carney v Commissioner of Police, NSW Police Force [2023] NSWCATAD 265 Collins v Department of Fair Trading [2019] NSWCATAP 199 Commissioner of Police v Ritson [2023] NSWCA 300 Coogee Bay Village v Profilio (RLD) [2011] NSWADTAP 67 DHZ v Children's Guardian [2019] NSWCATAD 13 DVT v Commissioner of Police [2021] NSWCATAD 108 Department of Education and Training v GA (No 3) [2004] NSWADTAP 50 EEH v Insurance and Care NSW [2022] NSWCATAD 82 EEH v NSW Self Insurance Corporation [2022] NSWCATAD 361 EJE v Commissioner for Fair Trading [2022] NSWCATAD 33 EJE v Service NSW and Commissioner for Fair Trading [2021] NSWCATAD 62 JD v Department of Health (No 2) [2004] NSWADT 227 KP v Narrandera Shire Council [2011] NSWADTAP 15 KT v Sydney South West Area Health Services [2010] NSWADT 94 LN v Sydney Local Health District (GD) [2012] NSWADTAP 9 LN v Sydney South West Area Health Service [2011] NSWADT 44 MJ v Department of Education and Communities [2014] NSWCATAD 12 MT v Director General, NSW Department of Education & Training [2004] NSWADT 194 NZ v Department of Housing [2005] NSWADT 58 Nasr v State of New South Wales (2007) 170 A Crim R 78; [2007] NSWCA 101 Norkin v University of New England [2023] NSWCA 194 OD v Department of Education and Training (GD) [2005] NSWADTAP 74 Robinson v Commissioner of Police [2014] NSWCATAP 73 Saggers v Environment Protection Authority [2013] NSWADT 109 Snow v Chief Commissioner of State Revenue (No 1) [2005] NSWADT 244 Walker v Roads and Maritime Services [2019] NSWCATAD 177 Webb v Secretary, Department of Communities and Justice [2023] NSWCATAD 168 Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 Texts Cited: Macquarie Dictionary Oxford Dictionary Category: Principal judgment Parties: FTD (Applicant) NSW Ambulance (Respondent) Representation: FTD's Father (Agent for the Applicant) Crown Solicitor (Respondent) File Number(s): 2023/00451201 & 2024/00019769 Publication restriction: Pursuant to sections 64(1)(a) and (c) of the Civil and Administrative Tribunal Act 2013 the publication of broadcast of the names of the Applicant and evidence in the proceedings which identifies the Applicant is prohibited. REASONS FOR DECISION 1. In these reasons the Applicant's name has been anonymised as "FTD" so as to preserve the privacy of their personal affairs. 2. The applicant seeks administrative review of various conduct of the respondent under the Privacy and Personal Information Protection Act 1998 (the PPIPA). Background 2023 Proceedings 1. On 12 December 2023, the applicant filed an Application for Administrative Review with the Tribunal, which sought review of a decision made by the respondent on 14 November 2023, on the following grounds: I am not satisfied with some of the findings (and reasons that support those findings) and action taken by NSW Ambulance from an internal review completed on 14 November 2023 in relation to the conduct of the NSW Ambulance that was the subject of my application for internal review under section 53. Those findings and actions include: 1. A finding that the internal review request was out of time; 2. Finding that failed to address conduct relating to a general complaint about actions performed and methodologies adopted by relevant NSWA staff in the performance of responding to a request for access to personal information made on 15 March 2023; 3. Finding that searches conducted were reasonable; 4. A finding that a complaint about conduct was not established in relation to assertions that wrong inferences were relied on by NSWA staff to form mistaken judgments on personal factors; 5. A finding that there have been no breaches of s 14 of the PPIP Act; 6. Recommendations that did not provide for the full release of unredacted emails identified in searches conducted; 7. Recommendations made for additional searches that offer no details of the timing and notification of outcomes to the applicant; 8. Various other reasons relating to the assessment of conduct and findings relating to the conduct and formulation of decisions made by NSWA staff; 9. Outcomes of the internal review are not consistent with a justified and proper application of the recommendations set out in section 53(7) of the PPIP Act; and 10. Other relevant grounds for which there is no remaining space in this application form to allow to be included. 2024 proceedings 1. On 17 January 2024, the applicant lodged a further application for administrative review, which indicated the following grounds: I am dissatisfied with findings (and reasons for findings) made by NSW Ambulance from an internal review completed on 22 December 2023 in relation to the conduct of NSW Ambulance that was the subject of my application for internal review under section 53 and request for amendment of personal information under 15 of the Privacy and Personal Information Protection Act 1998 (the Act) lodged on 24 October 2023. The request for amendment of personal information was subsequently withdrawn by me on 13 November 2023. I am now seeking review of the conduct of NSWA that was the subject of my application for internal review which also includes items of specific conduct that I allege breached the Information Protection Principles (IPP's) contained in the Act. In line with the numbering format used in my application for internal review, the conduct I wish to pursue for resolution under administrative review includes: A1 – conduct related to unauthorised/unlawful collection of my personal information. A2 – conduct related to awareness duties for collection of my personal information; A4 (A3?) – Conduct relating to the use of the personal information not fit for purpose; and A7 – Conduct related to unlawful disclosure of personal information to a person/body. I contend that recommendations of NSW of "no further action" in its internal review are grossly deficient under s 53(7) of the Act. I advocate to seek orders from the tribunal that are consistent with a justified application of the remedies set out in section 55(2) of the Act including an order for damages to compensation me for both financial loss and psychological or physical harm, because of the conduct of NSW Ambulance. Procedural matters – both applications 1. On 12 February 2024, Senior Member French adjourned a case conference in this matter be adjourned to 28 February 2024, and ordered that the 2023 application be considered together with the applicant's later application – 2024/19769. He stated that the following issues would be considered at the case conference: 1(a) whether this application should be heard together with case no. 2024/19769 (the related review); (b) Whether a non-publication order should be made assigning the applicant a pseudonym in this and the related review; (c) whether the applicant should be granted leave to be represented in this and the related review by an agent, (her Father)… 1. The Senior Member directed the applicant to file and serve any submissions in relation to those issues by 19 February 2024, and he directed the respondent to file and serve its submissions regarding those matters by 26 February 2024. 2. On 28 February 2024, Senior Member McAteer conducted a case conference at which (FTD's) Father appeared as agent for the applicant and Ms S Kirk (Crown Solicitor's Office) appeared for the respondent. He made a non-publication order under s 64(1)(a) of the Civil and Administrative Tribunal Act (2013) (NSW) (the NCAT Act), which anonymised her name to "FTD". He also ordered that these proceedings be heard with the 2024 proceedings and that the matters were "Not consolidated but to be managed by the Member hearing the matters as they see fit. Evidence in one proceeding may also be sought to be tendered to the extent as evidence in another). 3. The Senior Member ordered the applicant to file and serve the evidence and material that she relied upon by 4 April 2024 and he ordered the respondent to file and serve its evidence and material relied upon by 3 May 2024. Thereafter, the applicant was ordered to file and serve a reply, if any, by 15 May 2024, as well as notice to the respondent for any witnesses required for cross-examination at hearing, and any summons sought to be issued are to be applied for by that date. 4. The Senior Member listed the matter for haring on 20 June 2024 on the issue of liability and he granted the applicant leave to be represented by an Agent – (her Father) – until further order of the Tribunal. 5. On 2 April 2024, Senior Member Hobbs made orders extending the timetable issued by Senior Member McAteer and she confirmed the hearing date for liability issues. The Senior Member was satisfied that it was appropriate to determine the request for extension in the absence of the pursuant to s 50(2) of the NCAT Act. 6. On 31 May 2024, Principal Member Simon ordered the respondent to file and serve its evidence and submissions in both proceedings by 29 May 2024 and she ordered the applicant to notify the respondent of any witnesses required for cross-examination at the hearing, and to apply for the issue of any summons, by 12 June 2024. She ordered the applicant to file and serve any material in reply by 18 June 2024 and she confirmed the hearing date. She also noted: Note: The applicant's objections to the extension of time are noted, however an extension of time has also been granted to the applicant. No practical injustice results from the extension of time. If the applicant seeks an adjournment, she must make such application clearly identifying the reasons for the adjournment and seek the views of the other side. 1. The respondent applied to set aside summonses to give evidence that were issued to Mr Shaun Kelly and Miss Ashley Thorn at the request of the applicant. On 3 July 2024, Senior Member Rogers conducted a preliminary hearing of that application. The applicant's agent and Ms Kirk appeared. The Senior Member ordered the applicant to file and serve any material in response to the application by 5 July 2024. She extended the return date for the summonses to 12 July 2024 and listed the interlocutory matters for hearing on 9 July 2024. She also ordered the applicant to file and serve any material in reply to the substantive application by 16 July 2024. 2. Senior Member Rogers made similar orders in the 2024 proceedings. 3. On 9 July 2024, the interlocutory application was heard by Senior Member Little. The applicant's agent and Ms Kirk appeared. The Senior Member amended order 4 dated 2 July 2024 to refer to "25 July 2024" and reserved her decision in the interlocutory application. 4. On 9 July 2024, Senior Member Little issued reasons for decision and refused to set aside the summonses to give evidence that were issued to Miss Thorn and Mr Kelly. She listed the matter for directions on 23 July 2024, with the intention of setting a hearing date. 5. On 23 July 2024, Senior Member Little conducted the directions hearing, at which the applicant's agent and Ms Kirk appeared. She ordered the applicant to file and serve all evidence in reply by 1 August 2024. She ordered the respondent to file and serve any application, submissions and evidence in respect of any application for Miss Thorn to appear at the hearing by way of AVL and she ordered the applicant to file and serve any submissions in reply to such an application by 2 August 2024. That application would then be determined on the papers. She listed the matter for hearing on 16 August 2024, for one day. She concluded: 6. Notes: The respondent's further application to put on additional evidence is denied. The proceedings have been on foot for some time with various extensions. Allowing this late request will require a new timetable to be set to allow the applicant to consider and respond which will cause further delay. Similarly, the applicant has been given a short extension to put on her evidence in reply, on the basis that she has only received certain documents recently however, the tribunal will approach any further extensions for reply evidence with caution given the need to bring these matters to final hearing. 1. On 29 July 2024, Principal Member Simon ordered that the matter be listed for hearing for an additional day on 19 August 2024. 2. On 5 August 2024, Senior Member Little refused the respondent's application for Miss Thorn to appear by way of AVL, but noted that she would not be required to attend prior to 12 noon on 16 August 2024. She gave the following reasons: Ms Thorn has been summoned to appear at the hearing of these matters. The Respondent has made application that Ms Thorn appear by AVL. As submitted by the Respondent, the application should be granted because (1) Ms Thorn lives in a regional area of NSW would need to drive 3.5 hours to attend the hearing at 10am meaning and that she would need to pay for accommodation (2) This would lead to an unfair situation as the Applicant is not compelled to pay Ms Thorn conduct money as Ms Thorn is a public servant and is expressly excluded from s 47 of the CAT Act that allows such payment; and (3) This would also affect the work roster of a paramedic station. In making these submissions the Respondent contends that Ms Thorn's evidence should take no longer than one hour. In this respect, it is inherent in the Respondent's submissions that the Respondent is of the view that Ms Thorn's evidence is limited and insignificant. The Respondent also contends examination is limited in ambit because of the alleged "restrictions" placed on it by paragraph [32] of the decision of 18 July 2024 (the Decision). The Applicant resists the application for leave for Ms Thorn to appear by AVL and contends that Ms Thorn's evidence is a "key factor" who could be examined for "multiple hours". The Applicant also contends that there are accommodation arrangements that could be made by Ms Thorn by which she would not incur any expenses. The Applicant also draws the Tribunal's attention to the voluminous documents that have been filed and served in proceedings and the likely difficulties that would arise if Ms Thorn was examined by trying to navigate those documents alone: Webb v Secretary, Department and Justice [2023] NSWCATAD 168 at [20] and [25]. I accept that the costs and adverse consequences that are experienced by a witness that has been summoned to appear are relevant to an application such as this. However, in weighing up the various considerations, I accept the submission made by the applicant that these proceedings require Ms Thorn to appear in person given the voluminous or documents and the inevitable difficulty of a witness trying to navigate that externally. However, in consideration the fact that Ms Thorn lives regionally and over 3 hours away, I give a marking such that she is not required prior to 12pm on the first day of hearing and her oral evidence will be given between 12pm and 4pm on that first day. That should be sufficient time to conduct r examination but if that is incorrect, the Tribunal has the power to allocate another day of hearing as it sees fit. I reject the Respondent's contention that Ms Thorn's examination will take one hour. Even if Respondent was in a position to unilaterally determine the time for examination where it is not calling the witness, for the reasons in the Decision, Ms Thorn's evidence has obvious probative value for the reasons in the Decision and there is no reason to conclude that it will take an hour and only an hour. I also reject the Respondent's submission that the reasoning [32] or [33] of the Decision restricts the examination. The Decision does not place any novel or additional limitations on the examination of Ms Thorn other than what existed before the Decision and continues to exist after it. That is, evidence must be probative to be admissible and objections are determined by an application of principles of natural justice. The hearing 1. The matter came before me for hearing commencing on 16 August 2024. The applicant's agent appeared for and with her and Mr T Allchurch, of the Crown Solicitor's office, appeared for the respondent. 2. At the outset I asked the parties to identify their evidence, and it became apparent that the applicant had not complied with the Tribunal's orders. I spent an inordinate amount of time trying to ascertain what the applicant's direct evidence was, but the applicant's agent repeatedly advised to the Tribunal that the applicant had filed 10 bundles of documents, which were a "hybrid" of direct evidence and submissions. Applicant's evidence 1. Most of the morning session on 16 August 2024 was taken up with the Tribunal attempting to ascertain what the applicant's case actually is and where her direct evidence in support of her case could be found in the extensive documents (estimated to be more than 1000 pages) that were filed in respect of each matter. This resulted in the following exchanges: Tribunal: OK. Well, let's look at the evidence that's in the files. We'll deal with that and mark, anything that needs to be marked. And then I'll hear the openings. There has been a made for both matters to be heard together and for the evidence in one to be evidence in the other. Allchurch: This might be where it is helpful to have referenced that Guide that I've prepared, to go through the documents and check that the Tribunal has them all. Tribunal: OK, let's look at the applicant's evidence first. Allchurch: Yes, so, if we start with the first proceedings – 2023451201, there are 5 bundles marked A to E, each of which (the applicant's agent) has indexed. Tribunal: Does this contain the applicant's evidence or is it just a bundle of documents? Allchurch: Yes, it does seem to be of that nature and there is some duplication with the s 58 bundle, which I've noted. Tribunal: OK, so where do I find the applicant's evidence rather than bundles of documents? Applicant's agent: The applicant's evidence is contained in 2 lots of bundles - A to E for the 2023 case and bundles A to E of the 2024 case. Tribunal: Is there a Statement or an Affidavit from your client that sets out what her case is? Applicant's agent: That that was we, we coalesce things in the final submissions in the materials and replies. So we have 2 documents that are bound in red. Tribunal: So what is it that your client is to cross-examined on if she hasn't provided any direct evidence. Allchurch: I understand this the statements are in bundle E in each of the series. Is that correct? Applicant's agent: That's correct. Yes. Yeah, there are submissions in bundle B on both counts and what we've done is we've…. Tribunal: That submissions. That's not a statement of evidence. Applicant's agent: Well, then the statements in the evidence is in general we would say would be in bundles A to D. Tribunal: OK, but the documents in support of your client's allegations are presumably in those bundles of documents? Applicant's agent: She has statements. Yes. Tribunal: Where do I find your client's direct evidence regarding her case? Applicant's agent: Well, she's made submissions and bundle E for both cases. Tribunal: A submission is not a statement, it's not a document that can generally be cross-examined on because it's not declared or affirmed. Applicant's agent: And we've provided in material and we've coalesced our submissions and our evidence into that. Tribunal: I understand that they are the arguments and they are the arguments that refer to documentation. Where do I find a statutory declaration, a statement, or an affidavit from your client that tells me what her case is about, what her allegations are? Applicant's agent: They'd be in the bundles. Tribunal: That would presumably have been the subject of a direction at a case conference, wouldn't it, about filing of evidence? Correct. So where is it? Allchurch: I understand that the first document in bundle E is described in the index as statement by applicant in relation to request for access to personal information… Tribunal: Is that the only evidence that she's going to be cross-examined on? Allchurch: And well then the second one. Tribunal: What I'm trying to find out the full extent of her evidence, so I can admit her evidence. Allchurch: There is a second bundle E in the 2024 proceedings 2024/19769. How much of that is also a statement by the applicant? And then in reply to evidence filed by the respondent. The applicant has referred to other documents which are perhaps described as evidence in reply, but are also described as a submission. That is often the nature and proceedings of this kind, where an applicant is not legally represented, the documents are sometimes a mix of evidence and submissions. Tribunal: I understand that, but just briefly looking at this "statement" in the 2023 matter., most of it appears to be submissions, not direct evidence, as it's commenting on matters that have been raised, but it's not telling me what the case is. Applicant's agent: The case will be in our red submissions. Tribunal: Those submissions are not evidence. Submissions are arguments based on evidence, but it's not evidence of the facts that are asserted. Applicant's agent: Well, what I can say to that is, the submissions are referenced into all our bundles A to E and our final submissions and materials in reply are referenced into bundles A to E. Tribunal: I understand that you've filed bundles of documents. What I am trying to get my hands on is the direct evidence that the applicant relies on. And that was subject of an order that was made at the case conference by Senior Member McAteer in February. And was to be filed and served by 3rd April. Applicant's agent: And the applicant responded to that, there was an extension of that time from 3rd of Aril to 17th April, and applicant submitted their evidence in bundles A to E for each case. Tribunal: OK, so in response to that order for your client to file the evidence that she relied on you have simply filed bundles of documents and submissions but no affidavit evidence and no statutory declaration… Nothing that sets out what she says her case is about. Applicant's agent: The best we could point you to would be to the statements in bundle E. Tribunal: They are not declared as being true and correct and they comment on other documents. Applicant's agent: It's signed by the applicant. Tribunal: Yes, it is signed by the applicant, but not as a statement. All it does is refer to documents in the bundle. It doesn't tell me what the alleged breaches are, or what the basis of the allegations of the alleged breaches are? Applicant's agent: You would find that in the documents that we filed with our material in reply. So when we responded to the… Tribunal: I'm getting nowhere. Applicant's agent: When we responded to the… Tribunal: I'm getting nowhere. Allchurch: it's the applicant' materials that they filed. I can't really assist. Tribunal: I'm not asking you. I'm just asking where is the applicant's primary evidence? And please don't say it's in 5 bundles of documents. Applicant's agent: The summaries of the applicant's, evidence and all the references to her evidence are in the final submissions and materials in reply to the respondent's submissions on liability, which were lodged with the Tribunal on 1st August. Tribunal: These are submissions and not direct evidence of the facts alleged in them. Applicant's agent: But those documents that were lodged on 1st August are referenced directly into our bundles A to E. Tribunal: If they refer to other documents, they are submissions, they are not primary evidence. So what is the primary evidence that your client wants this Tribunal to rely upon in determining her application? There is nothing from her directly that says this is what her case is, this is what they did, this is what I say they did wrong, this is how it impacted on me. There does not appear to be anything of that nature. Applicant's agent: It's within those documents lodged on 1st August. Tribunal: In submissions. Applicant's agent: Yes. Well, in in materials in reply and we were asked to provide materials in reply. Tribunal: So you've made submissions and materials in reply, but there is no direct evidence. Applicant's agent: When you say direct evidence, we've tabled in our evidence. Evidence of, for example, Mr. Kelly's notice of decision in respect of a s 14 request in respect of the second case, which is about the collection, use and disclosure, we've submitted file notes of documents that we believe should not have been used. Tribunal: Where is the evidence in your client's own words, that she signed and declared as being true and correct, that tells me as the Tribunal member what these two cases are actually about? Applicant's agent: The best I can do for that is that the submissions with the material in reply would provide that. Tribunal: No, I'm sorry, that is that is not evidence. So, your client has not filed any evidence that she can lead in this Tribunal? Applicant's agent: Well, we've, we've… Tribunal: This is this is not a venue where you can just go in a witness box and give oral evidence and expect the respondent to meet it. Applicant's agent: We've we've we've lodged our evidence in our bundles and we've... Tribunal: But there is nothing from your client. No you're not understanding me, so I will try again to explain it to you. You have filed multiple bundles of documents. Their relevance does not become apparent unless there is primary evidence in the form of an Affidavit or a declared Statement that sets out what the applicant's case is. Now all I can tell from reading the application is there are alleged breaches of the PPIPA, for want of a better word description. What primary evidence in a documentary form sets out in a nutshell what your client's allegations are? And please don't say it's in the submissions, because submissions are not primary evidence. Applicant's agent: Well, you're asking me not to say that that's where we coalesce. Our arguments are referred into our evidence about why we believe the matters have been breached, so why s 14 has been breached, s 8, s 9. Tribunal: So the applicant has made a conscious decision not to file any evidence on which she can be cross-examined. Applicant's agent: Well, we believe that we met that standard when we lodged our evidence on 17th April. That's what we're asking… Tribunal: You've filed documents in support of an application… Applicant's agent: And we included in those documents within bundle A certain statements. Tribunal: Well, can I take you to the first document in bundle A... I've only skip-read this today, but most of this documentation, most of these documents are merely an index to other documents in the bundle, and does not actually set out your client's case. It does not tell me why she believes that there have been breaches of privacy. Applicant's agent: That document is in our… Tribunal: I know what you're going to say. Applicant's agent: Yes, that that's where it is. That's all I can say is to say, our arguments in terms of what she believes were the breaches and the allegations are all summarised and contained… Tribunal: In submissions. Applicant's agent: In in the documents that we lodged on 1st of August. Tribunal: In submissions. Applicant's agent: In submissions. I guess it's a hybrid document. It's submissions and materials in reply. It's where we concede certain matters that the applicant has raised in her original claims and it's where she coalesces her allegations of the alleged breaches of ss 14, 8, 9, 10, 16 and 18 of the PPIPA. The first couple of pages of that document would summarize for you what our case is. Tribunal: In the applicant's final submissions and material. Applicant's agent: In a nutshell. Tribunal: But it's not evidence from your client. Applicant's agent: But it references into the evidence. Tribunal: There is no direct evidence from your client. You are just not listening to what I'm saying. Yes, you've filed a heap of documents. There is nothing here from your client that tells me in her own words why we're here, why we got to this point in time, what her case actually is. All it does is refer to documents. Applicant's agent: No, the applicant's submission is signed by the applicant. It is her allegations of what the breaches are under the PPIPA and that document is signed by her and filed by me on behalf of her. Tribunal: So you're telling me that this the applicant's direct evidence is dated 1st August 2024? Applicant's agent: It references into her evidence. Tribunal: I cannot admit submissions as evidence. 1. The Tribunal noted that the applicant was ordered to file and serve her evidence by the end of April 2024 and that the applicant had not done so. The following exchanges then occurred: Applicant's agent: We thought we were doing that when we lodged our bundles on 17th April and we had the respondent's reply to those on 30th May. Tribunal: It's not the respondent's obligation to require the applicant to comply with directions of the Tribunal. It's their obligation to respond to the information and documents that have been filed by the applicant and to then present their case. Applicant's agent: We're here today to hear the case. Tribunal: Based on what? There is no direct evidence from your client that I can admit into evidence in her case. This is a documentary system. This is not a case where we come along and take oral evidence that is not already in statements… The applicant has a practical onus and she has not filed any evidence on which she can rely in discharging that. How is this matter ready to proceed? Applicant's agent: Well, we've got to the end of this matter. We believe we've lodged all our evidence on 7th April. Tribunal: So you're happy to proceed based on what you've filed? Applicant's agent: On all the documents we filed. Yes, we believe we're ready to do that today. Tribunal: I don't see how you're ready to do that because there is a proposal to cross-examine the applicant on Monday… based on what? She hasn't given any evidence. Allchurch: No, she hasn't given any evidence. I wanted to go through the applicant's evidence about what actually happened in this matter. Tribunal: If the applicant wants to proceed based on what they filed, then we will do that, but I am telling you right now that as there is no direct evidence from your client upon which this Tribunal can rely, you do so at your own risk. Applicant's agent: I'm sorry, I need something explained. The applicant has filed statements… Tribunal: She has not affirmed the submissions as being true and correct. They are not signed or declared before a JP or a solicitor or any other authorised person. Applicant's agent: The information given to us on the INCAT website gave us a choice to either lodge affidavits or lodge statements, and the applicant chose to lodge statements. And we were told, we were advised on the NCAT website that to be a valid statement it needed to be signed by the applicant and not affirmed or taken under oath. She could do that if she wanted to lodge an affidavit, but she chose not to and to lodge statements instead. That was signed by her as a true and correct record. Tribunal: So are you telling me that this document that you filed on 1st August is the applicant's only statement and that it does not contain submissions? Applicant's agent: The document contains her arguments and is in reference into the documents. Tribunal: OK. Do you understand that a document setting our arguments are submissions and not direct evidence of the facts alleged in those arguments? I think the answer to that is 'no', because you've chosen to go down this path. Well, you know, if you want to proceed we will try to get through it, but I don't know how the respondent can possibly cross-examine your client when they've asked her to attend for cross-examination. There is just nothing here that tells me in a nutshell, or in any direct terms, what the case is about; What documents or parts of documents are relied upon? What the alleged breaches are?; How those alleged breaches have impacted on your client?; and/or What she's seeking by way of recompense. Applicant's agent: Those matters are summarised in in the documents. Tribunal: And we're going around in circles because you keep giving me the same answer. Allchurch: I should clarify, this is a hearing purely on liability, so that you raised questions about relief or recompense… Tribunal: The orders required evidence to be filed and served in April and this has been done 1st August, and not in a form that contains evidence. Applicant's agent: These submissions on 1st August are referenced into all our evidence. Tribunal: And you keep saying submissions. Submissions are not evidence. Applicant's agent: Well, I'm sorry. It is a hybrid. It's the applicant's submissions and materials combined. Tribunal: Well it can't be a hybrid. So, that means if we're going to proceed based on this, before I can admit this document, we are going to have to go through it paragraph by paragraph and work out what is evidence and what is submissions. Because I cannot submit admit submissions into evidence. Tribunal: Did the applicant obtain any legal advice on running on preparing this matter? Applicant's agent: She tried to obtain legal advice from legal aid and from other sources, but she was knocked back. She went through applications, went through appeals with the legal aid, but she couldn't obtain legal advice through those avenues. She did approach the Law Society approach for Pro-Bono assistance and her application was rejected. She approached private firms and they couldn't assist and when we went to Marrickville Legal Centre, they couldn't assist and referred us to the Privacy Commissioner. And the Privacy Commissioner couldn't assist us in any legal situation that we were faced with, and so that's why I stepped in. Tribunal: All right, it looks like in the 2023 matter we are going through 73 pages of a hybrid document to work out what's evidence and what isn't. Allchurch: I'm not sure that that is consistent with the guiding principle, but I appreciate the difficulties… Tribunal: I think what I should do is vacate this hearing and order the applicant to file direct evidence as to her case because I don't know how any Member of this Tribunal is going to figure this out. Allchurch: If you were minded to do that Senior Member, I would note that Miss Thorn is driving down from Tuncurry and that is a 3.5 hour drive. We did apply for her to appear by AVL, but Senior Member Little refused that… So, if you do vacate the hearing then I would be minded to apply again for our witnesses to appear by AVL instead of having to come down from Tuncurry, because that's a significant imposition and having to do it twice… Applicant's agent: And we've gone through a stage now where we've had to resist the respondent's setting aside both of those summons to appear, which were successful, and then we resisted submissions by the respondent to have them appear by AVL, but in both instances Senior Member Little decided in favour of the applicant to not set aside the summonses and that for them to appear and give evidence based on her published decision. And likewise with the AVL situation we resisted that. Tribunal: What was the problem with Miss Thorn appearing by AVL? This Tribunal conducts hearings on by way of AVL every day of the week. What was the particular issue? I mean, I'm looking at the order. Allchurch: Yes, I think part of it was that there's such a significant volume of material that to take the witness to the documents would be difficult. In my situation, that's a difficulty that could be readily overcome if the applicant indicates which documents Miss Thorn needs to be taken to ahead of time and I can then give her electronic copies. Tribunal I suspect that that hasn't been worked out yet, so that that can't happen. We can't get any direct evidence after 4 months. Has the respondent had an opportunity to go through the documents in the 2023 case that was filed on 1st August and decide what is a submission and what is evidence? Allchurch: No Senior Member. I haven't done that. The respondent didn't want to take an overly formal approach to that, in recognition of the applicant being self-represented and you know the guiding principle of doing this in the just quick and cheap way. So we are ready to proceed if you think it's possible for the Tribunal to proceed. And you know we have put on our evidence that I would say is appropriate with our submissions about the matter. I accept the difficulty that you face. Tribunal: Well, it's a very real practical difficulty for the applicant. But if the applicant chooses to proceed on it, she does so at her own risk. Allchurch: The respondent is ready to proceed. Applicant's agent: And the applicant is ready to proceed. 1. Despite these exchanges, the applicant's agent repeatedly stated that that the applicant's evidence was "referenced in the bundles of documents", which she filed, and that these were "hybrid" documents. The following exchanges then occurred: Tribunal: I can only give the applicant a warning. I just need to be clear on this before we proceed because I don't want this coming back as an appeal point, that the Tribunal didn't give you adequate warning of the potential consequences of not filing direct evidence. Applicant's agent: Well, we believe we did. Allchurch: Senior Member I think you've been abundantly clear on that. Tribunal: I don't think I can take the matter any clearer. Allchurch: If you want to adjourn for 5 minutes so that (the applicant's agent) can then really consider that point carefully, that may also be suitable path. The respondent doesn't want that to be an appeal point. Tribunal: I think made it very clear. I would think that there's no sort of denial of procedural fairness and that's what concerns me. Because the applicant is not legally represented, I should give her an opportunity to consider her options before she proceeds potentially at risk. I don't think I can make that any clearer. Applicant's agent: What would that risk be? Tribunal: OK. I need to weigh the evidence, including the evidence of your client, and at this point in time there is no direct evidence from your client, even though you say she signed this hybrid document as a statement. There is direct evidence from the respondent's witnesses. Now when I come to determining the issues of liability, I need to weigh the evidence so at this point in time, we have evidence from the respondent and its witnesses and we have essentially submissions that may or may not be a statement from the applicant. There is nothing to balance. There is nothing to weigh up because submissions are not evidence. Submissions are arguments that are supposedly based on the evidence, but it's not evidence of the allegations in the submissions. And we've got evidence from the respondent. Now I can't make it any clearer than that. Applicant's agent: All I can say in response to that is the applicant has put statements in her bundle. Tribunal: But you've already told me that they are hybrid documents. Applicant's agent: They aren't hybrid documents in the bundles. The hybrid documents are the documents we lodged 1st August. Tribunal: They are submissions. Applicant's agent: So there are there are the documents on 1st August, one for each proceeding is our final submissions and materials in reply… Tribunal: An outline of observations, criticisms and you say it has been signed as a statement? Applicant's agent: Yes. Tribunal: Where? Applicant's agent: Well, as far as the applicant was concerned, she was signing it as a statement when she signed that document on page 15. Tribunal: Did this document come into existence after the document on page 15? Applicant's agent: No, it came into existence on the day she signed it. And apart from that document, there's another document that she signed which says her rebuttals to the respondent's internal review of her requests for access to information under s 14. Tribunal: Do you see on page 17 of her rebuttals… it says "end of submissions". Applicant's agent: So what? Yes, on page 32, that's her rebuttals to the internal review. Tribunal: Yes, and that is stated as being submissions. Applicant's agent: Well, maybe the heading shouldn't be taken as characterizing the document. Allchurch: Whether it's called a statement or submissions, the critical point of this is whether it is a statement of fact or is it an argument about a legal issue? I would say that this document is arguments about legal issues. Tribunal: Yes. Allchurch: It is taking issue with the internal review and of the conclusions that we reached, not because of any questions of fact, but because of different views. Tribunal: Yes. And then on page 47, there is a document headed "outline of issues in contention". Applicant's agent: Correct, and that's signed. Tribunal: How is that direct evidence from your client? That is her outlining the issues that she wants to raise. Applicant's agent: My client was not represented by a lawyer. Tribunal: I understand that and I'm I am trying to give you the opportunity to get this sorted before the case starts. Now I can't make you take that advice, and I cannot give you legal advice, but I can give you a warning that you're proceeding at significant risk if you proceed based on what you've done so far. Allchurch: Senior Member, can I suggest again that it might be germain for (the applicant's agent) and I to have a discussion. Tribunal: I think that might be a good idea. Maybe, as you are a legal representative of the Crown Solicitor for the respondent, who is a model litigant, to try to explain more to (the applicant's agent) what I'm trying to communicate, because he is not listening to me or taking in what I'm trying to warn him about. Allchurch: I appreciate the difficulty I will try. Tribunal: Is 15 minutes sufficient? Ok, I will come back at 11:15. Thank you. 1. The Tribunal adjourned briefly to enable Mr Allchurch to have a discussion with the applicant's agent. Upon resumption of the hearing, the following exchanges occurred: Allchurch: Well, that was that time was helpful I think, Member. I've had some discussions with (the applicant's agent) and I understand he's had the opportunity to talk to (FTD). I will leave it to (the applicant's agent) to say what he thinks you should know. Applicant's agent: So you know, you made it abundantly clear to us that we need to put on a statement of facts. So, that's what we'll do. In in lieu of that, we are we are wondering in terms of the Court processes, whether it's prudent to at least continue with the witnesses today, if they're here, or whether we adjourn everything today. We were just wondering from a from a Court point of view and the process of the of the Tribunal, whether it's prudent to continue with those examinations or to adjourn those examinations, we're not sure and we will put that to you. Tribunal: Mr Allchurch what is your thinking on this? Allchurch: Subject to that response, we are ready to proceed with the whole thing. Although I understand what you've said and you've been abundantly fair about the value of there being statements of fact from the applicant. It would be, I think, irregular to go in that fashion to cross-examine the respondent's witnesses. Tribunal: Before the applicant's case is apparent? Allchurch: Before the applicant put on a written statement. I should say I have gleaned from the large volume materials an understanding of the factual circumstances of the matter. Tribunal: Right. Allchurch: And I was planning at the start of the day to outline those to you in my opening statement, which I can still do today if that would assist. But then that will perhaps that gives rise to complexities with (FTD) preparing a statement. Tribunal: OK. Allchurch: So on the other hand, the respondent's witnesses are here and we don't want them to come back a second time. In particular, we don't want to have Miss Thorn have to drive down from Tuncurry again. It's a long drive, but given what's subsequently transpired, I think asking to come back a second time would be asking a lot. Tribunal: Yes. Allchurch: And I would be re-applying for AVL if we did go down that path. Tribunal: I'm just trying to think of the best way forward from here if we are going to proceed with this. Applicant's agent: And in turn, you know the applicant would again go through the same process of resisting the application go AVL, I mean it's our position that people be here in person. Tribunal: I don't entirely understand the reason for that given the extent of AVL hearings that are conducted in this jurisdiction every day of the week. Senior Member Little's decision does not bind me. If I feel that it's prudent to allow witnesses to proceed by AVL, I will make an order… There is no hard and fast rule about it. It comes down to what is considered the most appropriate manner of progressing the matter in order to achieve the Tribunal's stated objectives, and that will vary from case to case. Now it may be that it is not necessary for the applicant to cross-examine this particular witness on every single document in every single bundle. It could be a relatively simple matter, where the witness has the documents before her and she can be cross-examined. But I think at the moment we are putting the cart before the horse. Let me exit the room and I will grab a diary and I'll try to work out a way forward from. Here. Just give me a couple of minutes. 1. When the hearing resumed, the Tribunal made the following ruling: OK, I've had a bit of a think about the best way to proceed with this matter. I'm cognizant of the fact that if I now set a timetable for the applicant to file and serve a statement, it potentially prejudices the respondent and I'm not going to do that. I think what we will do is this. I will give (the applicant's agent) 30 minutes to clearly outline what the allegations are in this matter and what evidence in the bundles various bundles of documents are relied upon by the applicant to support her allegations of fact. I will then hear from the respondent, and we will deal with the respondent's case. And then by Monday, I would like (the applicant's agent) to be prepared to file and serve a schedule of each of the documents in these bundles that the applicant relies upon as being particularly relevant and we can then hear from the applicant. There being no primary evidence from her, it will be a matter of cross examination by the respondent and potentially, re-examination by (the applicant's agent) and any questions that this Tribunal feels are appropriate to ask the applicant under its inquisitorial powers. And then most likely at the end of that, if we finish on Monday, there will be a reserved decision on liability. 1. However, the applicant's agent sought to cavil with that ruling and the following exchanges occurred: Applicant's agent: Can I respond to that? Tribunal: You can, but you've had four months now to comply with the orders that were made by Senior Member McAteer by way of filing evidence and you have chosen to go down a particular path and now we're here. Applicant's agent: We haven't chosen we… really haven't chosen it, but we've come to that crossroads. Tribunal: Well you have chosen the path that you chose to follow. Applicant's agent: Well the applicant doesn't have legal representation. Tribunal: I'm aware of that. I have attempted to afford her procedural fairness. I brought this to your attention at 10:00 this morning. It's now 11:45 and you are still arguing over it. I am affording your client procedural fairness, but she doesn't have to take it. Applicant's agent: I made a mistake. We would like to take procedural fairness, but the way we would like to take that is to adjourn the matter today and with you and for the applicant to obtain legal advice on these issues. Tribunal: No, sorry. The matter has been going since the case conference in February. This is the hearing date and two days have been set aside by the Tribunal. Applicant's agent: That is our submission to the Tribunal, that we've been put in a situation where we don't we've made a mistake in terms of articulating the facts of the case. That's because the client is self-represented… Tribunal: Well, she's not, with all due respect, self-represented. You are appearing as her agent. Applicant's agent: I am, but I'm not a lawyer. Tribunal: She is not here on her own. You are here as her agent representing her. So I will give you 30 minutes to tell me orally what the allegations are, and which of the documents in the various bundles support those allegations? Applicant's agent: There are 10 bundles of documents in these proceedings and to do that in 30 minutes is not going to be easy. Tribunal: I am not asking you to do a list in 30 minutes. I am giving you 30 minutes to tell me what the allegations are in the case and over the weekend, you will prepare a schedule and you will hand that to the Tribunal and the Crown Solicitor on Monday, so that we know what documents are relevant to the issues in dispute. And this matter will proceed. I'm not going to throw away 2 days of the Tribunal's hearing time and put the respondent to this significant cost of bringing back several witnesses from various locations to give evidence when their case is ready to proceed. Applicant's agent: The only way we would respond to that Senior Member is you made it abundantly aware to us earlier in the hearing of the risks we were taking by proceeding… Tribunal: Or your client can give oral evidence on Monday, but there is no direct documentary evidence from her. Applicant's agent: We would like the opportunity to do that. We made a mistake in not being able to present those documents to the Tribunal. Tribunal: No… we're here 6 months down the track after the case conference. The documents are in. The parties are here. This is the hearing date. Applicant's agent: But given your articulation of the risk Senior Member, we've taken that on board and we would like to. Have time to mitigate that risk by going away... Tribunal: I may be persuaded on Monday to give you leave, to call oral evidence from your daughter, but I see absolutely no utility in throwing away a 2-day hearing that has been arranged at significant cost for the Tribunal and the parties. That is my ruling, …do you wish to proceed or not? Applicant's agent: What we'd like to do is, I guess, do our best to provide what the allegations are today, and the opportunity to put on a statement of facts, is that not possible? Tribunal: No. You were ordered to do that by the end of April. You decided not to do that by mistake or otherwise. Applicant's agent: We didn't decide not to do it. We've made a mistake. Tribunal: And the decision was made by mistake because you didn't understand what you were doing. But that is still a decision that was made by you. Applicant's agent: And we'd like to rectify that mistake. Can I? Tribunal: No. 1. Mr Allchurch suggested a possible compromise, namely: Allchurch: If, by Monday, the applicant wants to prepare a statement of facts and you know that can be tendered on that occasion and she can be cross-examined on that statement of facts and that can be, you know, supplemented by what she might say orally by evidence in chief… I'm just trying to see a way forward. Well, I think it would be helpful to get to do opening statements, which I think is essentially what you're saying. Tribunal: I see no utility in now re-opening the evidence. Allchurch: I think a lot of the facts are not actually in dispute. But I will in our opening statement, outline what we understand the facts to be. Tribunal: I don't know. Allchurch: that may assist you to understand the scope of the matter, the allegations. Sorry, I'm just trying to assist and to try to find a way forward. Tribunal: Yes, as am I. Allchurch: Yes, of course. 1. The Tribunal then made the following ruling: Having heard what the parties have said, and particularly the representative of the Crown Solicitor's Office, I intend for this matter to proceed as currently listed as follows: 1. The applicant's agent will be given 30 minutes to tell me orally and as succinctly as possible, what his clients allegations of fact are. 2. I will give the applicant an opportunity to prepare a succinct statement of facts, which will be handed to the Crown Solicitor's representative on Monday morning, and if there is no dispute as to its contents, it can be handed to the Tribunal and considered as evidence in the matter. 3. I will also require the applicant's agent by Monday morning to have prepared a Schedule of each of the documents in the multiple bundles that have been lodged that are relevant to the facts in dispute. It will not simply be a case of all the documents having been filed being admitted into evidence. There is a question of relevance and weight to be given to each of the documents that are tendered into evidence, and those relevant documents and their relevancies need to be clearly identified. 4. After the conclusion of the applicant's opening statement, I will hear an opening statement from the respondent. So far as possible, we will then admit the respondent's evidence and deal with any objections to that evidence. And as far as possible, we will conclude evidence from the respondent's witnesses today, so that they are not put to additional expense of attending on another occasion. 5. If we are unable to reach and conclude evidence from the respondent's remotely located witnesses by close of proceedings today, I will grant such witnesses leave to attend on Monday by way of AVL in order to complete her evidence in the most-timely fashion and in order to give effect to the objects of the Tribunal. 6. The applicant can then be called and/or cross-examined. 7. Any remaining witnesses from the respondent can then be called and cross-examined. 8. We will then proceed to submissions. Now, is that clear enough for everyone? Thank you. Applicant's opening statement 1. The applicant's agent stated to the effect that on 15 March 2023, the applicant lodged a request for access to her personal information under s 14 of the PPIPA, in relation to documents that were created or produced in respect of a Student Clinical Placement that she attended with the respondent in the period from 26 December 2022 to 22 January 2023. 2. That request was the subject of a decision by Mr Shaun Kelly in a Notice of Decision dated 24 April 2023. As part of that decision, Mr Kelly searched and found a number of documents such as file notes, emails, Excel spreadsheets and alternative evaluation documentation. He decided to invoke the public interest test under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) legislation and rely on various items in the table to s 14 (2) of that Act, and that on balance, that redaction of some of the information was necessary before it was released to the applicant. 3. The applicant asserted that the searches undertaken on behalf of Mr. Kelly were not responsible, as he asked other people to do the searches. She also believed that his application of the public interest considerations to restrict access to her information, involved a number of contraventions of the public interest test. The applicant's agent stated that this was central to the applicant's case, and that "in a nutshell, what we term a Student Placement Agreement contravention occurred". Therefore, in effect, the applicant believes that Mr Kelly erred in applying the public interest test in a situation where she was asking for information that should have been provided to her under the Student Placement Agreement executed between the respondent and the University of Tasmania. 4. The Tribunal attempted to clarify this allegation, and the applicant's agent stated: We're saying that under that document, Ambulance's performance of their obligations under that document meant that they had to provide the documents to the applicant at the conclusion of their clinical placement and they failed to do that. And that was the motive for the request – for access to her documentation subsequent to the conclusion of the clinical placement. So we believe that by non-performance of Ambulance's obligations under the Student Placement Agreement, when the applicant lodged asked for access to the information under s 14 of the PPIPA, the respondent was estopped from using the public interest considerations because they had failed to perform their obligations under a legal agreement executed between the University and it that required them to provide that documentation to the student at the conclusion of her clinical placement. 1. The Tribunal asked the applicant's agent what type of estoppel he is alleging, as there is no Court determination, so it's not res judicata. He then stated that the applicant was "not using the word estoppel in a legal sense that we're not familiar with, sorry." The Tribunal observed that from what he has said so far, it is hard to see how there is any kind of legal estoppel. He then stated that the Student Placement Agreement requires the respondent to perform certain matters. The following exchange occurred: Tribunal: So you are basically telling me that your case is that you believe that upon completion, under the terms of the Agreement between the Ambulance Service and the University regarding the clinical placement, the Ambulance Service was supposed to provide your client with relevant records relating to the clinical placement, and it did not do so? Applicant's agent: The evaluation documentation and feedback. Correct. Tribunal: And therefore you say that it cannot then validly apply the public interest test in response to the s 14 request. Applicant's agent: Correct, because it had an obligation to provide them anyway under a legal agreement. Tribunal: But that is a legal right that arises under contract… That is not a breach of the privacy legislation… Because I'm not here to determine a contract dispute and I'm here to find out what the alleged breaches of the privacy legislation are. Applicant's agent: No, we're not saying that… We're saying that because there is non-performance of the obligation, which meant that the applicant didn't get her documentation and then the only way she thought she would be able to obtain that documentation was to lodge a s 14 request with the respondent to ask for the documents under the PPIPA. The Agreement is that the student receives the documents before she leaves the placement, not from the University. In fact, they were provided to the University and not to the applicant. That is the issue as well, but not an issue for these proceedings. Tribunal: So how is then is that a breach of the privacy legislation? Applicant's agent: We're saying that that if you've got a legal responsibility to provide the documents to a person and you don't do it, and they've got to then go under s 14 to get those documents, there could not be any public interest in terms of not those documents because they have already signed an agreement to say you'll give the documents to the student. That's what we're alleging. Tribunal: The Clinical Placement Agreement was not between your client and the respondent. Applicant's agent: No, but the agreement includes provisions that ensure that students, and for that matter, the respondent's employees are aware of the agreement and that they should comply with it. The first thing she did is went to the University and said "can I see my assessments?" The University said "no, you can't. We're not going to provide them to you." So she was in a situation where she was being assessed on a clinical placement as the last component of her degree, and she couldn't get access to an assessment on which she was being assessed by the University as to whether she would pass or fail that subject. Tribunal: What reason did the University give her? Applicant's agent: The University said "we can't give it to you because ambulance hasn't provided consent for us to give it to you." Even though it was her assessment documentation, and to this day, the University hasn't provided that to her. Tribunal: Well, I don't know what the Tasmanian legislation is for government information, but one would think that they would have to be some sort of third-party consultation before the documents could be released. Applicant's agent: But it's an assessment document for the student. She didn't get access to the document that the respondent produced. Tribunal: I understand that. I'm just trying to understand how that is a breach of the Privacy legislation. It's potentially a breach of contract. Applicant's agent: It is. Tribunal: But we're not here to deal with the breach of contract. Applicant's agent: No. We're saying to you that because there was a breach of contract, they can't deny our assertion is there was a breach and that because of that breach, when she goes to the respondent and said "I want my documentation that you should have provided me under the Student Placement agreement, and now I'm coming to you under the Privacy Act," there should be no reliance on the public interest test given they have a legal obligation to provide that documentation to her in the first place. That's one of the contraventions we allege. 1. The Tribunal then asked The applicant's agent to outline any further alleged contraventions of the PIPPA and the following exchanges occurred: Applicant's agent: The second contravention is that we believe in applying the public interest test, the Ambulance made errors of fact and judgment in in applying each of the s14 items in the Tables to find that there was an overriding interest against disclosure of that information, both in terms of personal factors relied on and which items were picked from the table in s 14 of the GIPA Act. Tribunal: So does that mean you're saying that none of the s 14(2) table items apply? Applicant's agent: Our assertion going through each one (and there are 5 them relied on)… Tribunal: Perhaps you could just let me finish what I'm saying, and then you can respond to it. So is it a case where you're saying that no s14(2) items properly applied, or that the respondent identified the wrong s14 (2) items, or that they erred in applying the public interest test under s 13 of the GIPA Act. What is the exact nature of the complaint here? Applicant's agent: This particular complaint is that they erred in relying on particular items that weren't available to be relied on, and the reasons given in relying on them don't reflect the factual situation of the circumstances. For each of the five items relied on from the section 14 tables. In terms of the personal factors relied on. The particular one being motive. We say that the Ambulance was incapable of inferring the motives that they did to the applicant based on the information that they had in the request for information. Tribunal: The personal factors of an application is a discretionary matter. They're not mandatory under s 14(2). Applicant's agent: In in our case, they, well, they may be discretionary. I'm not sure. Tribunal: They arise under a separate provision. Applicant's agent: Yeah. Yeah, they do. Section 55, I think it is. Tribunal: Yes. They're not part of s 14(2). Applicant's agent: Yeah. Yeah. So under s 55, Ambulance then went to s 55 and said we believe there are personal factors that we also need to take into account in terms of the public interest tests and we… Tribunal: Yes. Did the actual paperwork that was lodged indicate any personal factors? Applicant's agent: No, we didn't mention any motive as to why we were applying for our information. Tribunal: No, it's just like in a standard GIPA form, one of the questions that is asked is whether or not there are personal factors of the application. I'm just asking if there's any similar provision that you're relying on. Applicant's agent: No, we used the form that was published by NSW Health in terms of providing a s 14 request, we used their form and in that form there was no reference to GIPA provisions at all, so that that's why I was surprised to us when they were applied because we weren't aware of the provisions at that time. We were relying on s 14 to get access to the information. Tribunal: OK. There is a crossover when it comes to personal information. Applicant's agent: So in terms of the personal factors, we didn't state any motive in the request as to why we were seeking the documents, but as part of the process of applying the public interest test, the respondent felt that they should apply personal factors, in particular the motive of the applicant in applying for their information. And we believe they made wrong inferences… 1. The applicant's agent then outlined a further alleged contravention and the following exchanges occurred: Applicant's agent: The next one is we believe that the applicant had in its documents that the applicant had actually made a previous request for a previous placement in similar terms to this one. In that matter, it went to internal review and the Ambulance engaged the Crown Solicitor's Office. John McDonald, the Assistant Crown Solicitor did the internal review of that first matter and came to a determination on a very similar set of facts for a previous placement that Ambulance had erred in applying elements of the public interest test or that the weight given to them wasn't as Ambulance had suggested in their previous notice of decision. The decision of Mr McDonald was handed down on the 11 July 2023, about 2 1/2 months after the notice of decision in this matter was made by Shaun Kelly. And our view is that once that decision was lodged in which Mr McDonald found that the public interest tests hadn't been properly applied and in fact found a partial breach of s 14, that it should have been reasonably foreseeable to Ambulance that the decision they've made two months previously when Shaun Kelly made his decision was in fact not in compliance with the privacy legislation in terms of s 14. And the way they had applied the public interest test in that situation, because that decision also relied on the same public interest considerations in s 14 and also relied on the same personal factors as the Shaun Kelly decision, so they were so sufficiently identical that we believe that once that internal review by the Assistant Crown Solicitor had been determined, and the way it had been determined that there was a breach of s 14, there was an obligation on the respondent to go back to the decision they'd made two months earlier to say, well, that decision must not be in compliance with s 14. Tribunal: Mr McDonald's decision was made after Mr Kelly's decision wasn't it? Applicant's agent: Correct, correct. But we believe that there is… Tribunal: And what section of the Act do you say then obliges the respondent to reconsider its position. Applicant's agent: We believe there's always an obligation on the respondent to be in compliance with the provisions of the PPIPA, so when it becomes reasonably foreseeable to the respondent that a decision has been made under another internal review which is sufficiently identical to this review and is in favour of the applicant, that they have an obligation, irrespective of any internal review that the applicant request in the future, to be in compliance with s 14 and the way that they've applied the public interest test. It's not a situation where you make a decision and you leave that decision, you always need to re-evaluate particular circumstances where the facts are so identical as to say to you that it's reasonably foreseeable that that our decision made by Shaun Kelly is not in compliance with the Act. We don't believe that once you make a decision, the Act stops applying to you. You've always got to be cognizant that you need to be in compliance with the information protection principles in the Act notwithstanding that an applicant may not have exercised their rights at that time to lodge an internal review. It doesn't go away. It's perennial. Tribunal: Was Mr Kelly's decision an internal review decision or original decision? Applicant's agent: It was an original decision. Tribunal: OK, So what happened on internal review? Applicant's agent Of Mr. Kelly's decision? Tribunal: Yes. Applicant's agent: Well, at that time the Ambulance had the benefit of seeing the Crown Solicitor's internal review of the earlier notice decision. Tribunal: Yeah, but what was the date of the application for internal review? Applicant's agent: That was 13th September 2023, I believe. Tribunal: So is that the decision that's being reviewed in these proceedings? 13th September 2023? Applicant's agent: And so by that time, given that the Assistant Crown Solicitor's internal review had been decided on 11th July 2023, some months before, the respondent obviously had the benefit of looking at that internal review by the Assistant Crown Solicitor. Tribunal: OK, so the internal review decision was made on 13th September. When was the application for internal review? Applicant's agent: Please. I'm sorry. No. So the application for internal review was made on 30th September. The decision of the outcome of the internal review was made on the 14th November 2023, within the 60 day period that's normally applicable. Tribunal: 14th November 2023 is the decision under review. OK. Applicant's agent: Yes. And that was made by Mr Jack Henderson, the Director of Legal Services. Tribunal: OK, where do I find that document? Applicant's agent: Yeah, that document in in Bundle A of the first proceeding and I believe it's on pages 72 to 75. Allchurch: Senior Member for assist you it's also in bundle 1 of the s 58 documents… Applicant's agent: Yes, it's in Bundle A of the 2023 proceedings at page 72. Tribunal: OK. Let's have a look at that document. OK so which parts of this decision do you say are subject to attack? Applicant's agent: Well, that's part of the lengthy document of rebuttals that we provide in that decision and that document is in Bundle E of our first proceeding. Tribunal: OK, so on page 72, the second last paragraph says "to avoid confusion the applicant's internal review request refers to a separate application for personal information made in August 2022, which was subject to Internal review by the Crown Solicitor." Applicant's agent: Yes, which was decided by him 11th July 2023, after having to go through the Privacy Commissioner. We were rejected initially on this internal review being on the internal review of the original decision in August 2022 being done. We were told by Ambulance that it was out of time, so we had to go to the Privacy Commissioner and then to the Legal Department of the Ministry of Health. And through that process, Ambulance re-assessed its original decision that the matter was out of time and decided to do an internal review, which is when they engaged the Crown Solicitor, Mr John McDonald, to undertake that review. Tribunal: Yes. But Mr McDonald's review decision is not before me as part of these proceedings. Applicant's agent: Correct, correct. But we're saying it has some relevance. Tribunal: So what I want you to do is to tell me as succinctly as possible what you say is in breach in the reviewable decision. Applicant's agent: Well, that's part of a 10-page document that we submitted. Tribunal: And you can rely upon that in due course when it comes to presenting your submissions. I'm just asking you to draw my attention to what you say about how this document breached the legislation. Applicant's agent: Well, in fact, what we are saying is that we provide rebuttals to this document, but the conduct, the principal conduct that we referred to, is always back to the original conduct of the actual decision on our internal review of the decision of Mr Kelly. So that that has always been the conduct to which we have responded. Mr Henderson reviewed our application and in fact decided that the public interest was in favour of releasing the documents to (FTD), but because we didn't get those documents those documents upon release of Mr Jack Henderson's decision until 14th November, when the applicant finally received her assessment documents that she had thought she was entitled to at the end of her placement. On 14th November, Jack Henderson made his decision that upon application of the public interest test, there was an overriding public interest to provide the information to her. So the applicant is fundamentally saying that s 14 was breached because there was an excessive delay to for her obtaining her documentation. And in fact, all the information wasn't released with Jack Henderson's decision – they still withheld emails that weren't provided to the applicant until 9th February 2024, when this matter first came before the Tribunal in a conference hearing. Just immediately prior to that conference taking place, Ambulance said here's the final documents that we can provide to you that we probably should have provided to you on the 4th November, but that we're providing to you now. Tribunal: So what's the period of breach you're relying on? Applicant's agent: Well, there are the different contraventions that we allege for s 14, the student… Tribunal: Well, we're still talking about contravention 2, aren't we? Applicant's agent: In terms of contravention to the application of the public interest test, we would say that we should have got those documents when Shaun Kelly made his decision on 24th April. However, because of his application of the public interest test, we didn't get until them until internal review on 14th November in terms of file notes, and in terms of emails we didn't get them until the 9th February – a few days before the first case conference in this process. Tribunal: What reason was given for that? Was it necessary to obtain consent to release? Applicant's agent: No, no, no. Mr Henderson has submitted to say that he inadvertently missed the fact that the applicant had specifically asked for those emails in her internal review application. Tribunal: Alright, OK. Applicant's agent: Although we suspect that it was just his emails, let's close down the case, that was our view. Oh yeah and there is an additional matter too. When the Crown Solicitor issued those emails on 9th February, she didn't talk about Jack Henderson inadvertently forgetting to provide them to you. She talked about now under the public interest test, there's no longer a public interest against you receiving it, so we didn't quite understand that when Jack Henderson had already come to that conclusion in November 2023. We thought, well, why didn't you give them to us? What's changed in the public interest between Jack Henderson making his decision on the 14th and you releasing them to us on 9th February. We don't believe there was a change. 1. The Tribunal asked the applicant's agent whether there were any further alleged contraventions and the following exchanges occurred: Applicant's agent: OK. Our other contention is apart from the information being released late with excessive delay we believe that there haven't been reasonable searches completed in relation to the applicant's original s 14 request for her personal information. Tribunal: OK. And what's the basis of that? Applicant's agent: The basis of that is that Mr. Shaun Kelly asked other people to undertake those searches on his behalf, particularly in relation to searching their e-mail inboxes outboxes for information relating to the applicant. And we believe that one of those persons, Miss Thorn, who is here to give evidence today, restricted the information that she gave back to Mr Kelly and didn't provide everything in her possession that she knew about that was personal information of the applicant. That is one of our contentions in relation to reasonable searches. We have two others. Tribunal: So, do you say that there cannot have been reasonable searches in compliance with the Act unless the person who's making the decision does the searches themselves? Applicant's agent: No, we're not saying that at all. We're saying that, it was probably prudent in that situation for Ambulance not only to us those persons who may have the documentation in their emails, but to reasonably undertake a central search of their IT systems. Given that they use Microsoft Exchange for their e-mail system, to just run a query on emails coming in to those persons' E-mail inboxes and search on the term "(FTD)" to make sure or verify that all information that is in those inboxes was actually being released. Because we believe that Miss Thorn purposely didn't provide certain information in her inbox, and that extra verification would have picked up that fact. Tribunal: OK. And where do I find the evidence in support of that? There has to be evidence to establish a reasonable basis for that belief. So where do I find that evidence? Applicant's agent: Yeah, the evidence… Tribunal: And please don't say they're in the bundles. Applicant's agent: In June, we lodged summonses. Well, actually, even before that, Mr Jack Henderson from the respondent put on evidence to say that he had telephone conversations to say that there was emails, I think in her emails. But in any respect, we issued summonses in June on Miss Thorn and also the respondent to produce documents of this nature and we gave descriptions of documents, photographs of evaluation forms and emails that we knew to exist that would flow from the iPhone on which the photographs were taken and the transfer of those photographs into NSW Ambulance's systems. So, we knew those emails existed because the Ambulance Service had had later relied on those images coming into its systems, so they had to come from somewhere, but we haven't been provided with the emails that had transferred the documents from the iPhone on which the information was collected into the Ambulance Systems. So, we lodged the summonses and as a result of the summonses, Miss Thorn produced emails dated 1st February 2023, when she had taken photographs of the applicant's evaluation forms on 22nd January 2023 on her personal iPhone. Jack Henderson provided evidence to say that she was approved to use that for work purposes, and she transferred those photographs to her official NSW Ambulance e-mail account on 1st February 2023… She took the photos on 22nd January 2023, when she was sitting down with the applicant. The applicant was called away and then at that stage she took the photos and collected the personal information and we allege collected the personal information of the applicant at that time by taking photographs of those documents without the knowledge of the applicant. And then held those documents in her iPhone until 1st February, when she transferred a sub-set of those documents (about 7 photos), and 5 of them were transferred by personal e-mail from a personal e-mail account to an Ambulance e-mail account on 1st February 2023. And that e-mail was provided under summons in July 2024, as were the original photographs she had taken on her iPhone on 22nd January 2023, which we say also is personal information of the applicant's on her iPhone, because she was given approval by the Respondent to use her iPhone for work purposes. So they became held by the Ambulance at the time she took the photos on her iPhone, notwithstanding that it was a personal iPhone. And all she was doing in in the subsequent situation was transferring those photographs to the Ambulance's IT storage systems… Tribunal: And what section of the legislation do you say that breached? Applicant's agent: We say that breached s 14 because there weren't reasonable searches done and we didn't get those documents until around 17th July. Tribunal: No… You have just told me all about holding this personal information on a personal device that the witness was the person was authorized to use for work purposes. I'm asking you if that holding you've just described to me in great detail is, you say, a breach of the legislation? And if so, what is the legislation that's breached? Applicant's agent: Oh. We say that that's part of our second proceeding. Tribunal: OK. Well, can we just deal with the ones in the first proceeding before we get into the second proceedings? Applicant's agent: Yes, but you're asking me the question of what of what she breached. We're saying she breached the collection provisions of the PPIPA – ss 8, 9 and 10, when she collected information on her iPhone for a purpose that we don't believe was a purpose under s 8 of the PPIPA, and for that matter she didn't directly obtain them from the applicant. Relying on subterfuge when the applicant was away from her documents, that is the moment she took photos of the documents. That's what we allege. Tribunal: Yes. Applicant's agent: And again, also Miss Thorn made no attempts to make the applicant aware that she had collected the documentation on her iPhone, which we believe we say is effectively an extended component of Ambulance's IT storage systems, given that she has approval to use that iPhone for work purposes. Tribunal: And is this part of proceedings 1 or 2? Applicant's agent: Proceedings 2 is related to collection use and disclosure. Tribunal: So, again, can we just deal with the first proceedings? Applicant's agent: What would you like to know, Senior Member? Tribunal: Well. I thought that you were addressing "no reasonable searches were conducted" in respect to the first proceedings, and now you've just told me that this is all part of the second proceedings. I'm trying to keep them separate. Applicant's agent: We're saying what is that on discovery of her information once Mr. Kelly lodged some information to the applicant on 24th April 2023 as part of his notice of decision, but withheld others, and then Jack Henderson as part of his internal review provided the balance of the personal information to the applicant, on seeing those documents the applicant became aware for the first time that her personal information had been collected by the respondent back on 22nd January. 2023 and she did not know about that. And that's why there's a sequence here. Tribunal: So, everything that you have told me about from 22nd January 2023 relates to the second matter, yes? Applicant's agent: They are connected, yes, because the discovery of information based on the access request meant that the applicant then lodged an application with this Tribunal in relation to "collection matters", which she only became aware of when she obtained access to her information. That's why the "access" case is the 2023 case and the "collection, use and disclosure case" is the 2024 case. Tribunal: So is that a yes? Applicant's agent: What was the question? Tribunal: Everything that you've told me about from 22nd January 2023 relates to the 2024 case, yes or no? Applicant's agent: It has a relationship to it, because the information that... Tribunal: I understand that that's about collection and use and whatever. I'm asking you to tell me what you are alleging in relation in the first proceedings? Now, have you stopped doing that and moved on to the second proceedings? Applicant's agent: No, I haven't, because I said that there were 2 other matters in terms of reasonable searches that weren't done. We've talked about one of three. Tribunal: Right. Well, why don't you just tell me about the other two so that we can put a line under the 2023 application and get on to the 2024 one? Applicant's agent: So the second matter in terms of reasonable searches is we don't believe that the list of people that Mr Kelly asked to search their e-mail boxes for personal information was comprehensive and it missed out people who may hold personal information of the applicant. Tribunal: What's the basis for that? Applicant's agent: The basis of that is evidence put on by the respondent, by Jack Henderson. He says that Mr Kelly did searches three 3 peoples' inboxes: Miss Thorn; Mr. Dwyer, her manager; and Mr. Corbett, the Clinical Co-ordinator for NSW Ambulance. And that search was not all the people we asked for searches to be done in the s 14 request - we also asked for searches to be done of the Tuncurry Station Paramedics at the time of the applicant's placement and those searches were not done. Tribunal: OK. And the third matter? Applicant's agent: The third matter is in the same s 14 request, we asked for searches to be done of incoming e-mail from University of Tasmania staff, who were sending emails from the University to NSW Ambulance in relation to the applicant's personal information. And there we believe that those searches of Ambulance's e-mail records were not done for those named individuals. Tribunal: What were their names? Applicant's agent: Their names were Susan Avis, she is the Unit Co-ordinator for the University of Tasmania, and Belinda Flanagan, she is the Director of the School of Paramedicine at the University of Tasmania. The third person is Laura Triffitt, who is also a Unit Co-ordinator for the University of Tasmania… Tribunal: OK. And what's the basis, the belief that those searches weren't conducted? Applicant's agent: Mr Henderson has put on evidence for the respondent to say that he looked at the records that Shaun Kelly had produced from the searches, and that those records only provided evidence that Mr Kelly had done searches for Susan Avis, Ian Dwyer, Miss Thorn and Mr Corbett. Tribunal: So you believe no searches were done for Belinda Flanagan or Laura Triffitt. Applicant's agent: We're pretty confident of that based on the respondent's statements, and they're hearsay statements as Mr Henderson was not directly involved in conducting them, he said that he has reviewed the emails of Mr Kelly and could only see those three people, where Mr. Kelly was asking those three people to undertake searches on his behalf. Tribunal: OK. Are there any other matters relating to the first proceedings? Applicant's agent: That's the first proceedings. 1. The Tribunal then asked the applicant's agent to provide an opening statement in relation to the 2024 proceedings. The following exchanges occurred: Applicant's agent: So this this is a matter involving a number of alleged breaches of the information protection principles. They are, in a nutshell, the collection and use principles under ss 8, 9 and 10 of the PPIPA and the disclosure principles under s 18 of the PPIPA. Tribunal: OK. Applicant's agent: So the issue in terms of collection is that Miss Thorn photographed documents on her iPhone. Applicant's agent: Yes, correct. Tribunal: OK. What's the next one? Applicant's agent: So our issues are about "lawful purpose" and that the "collection not being reasonably necessary for purpose" and the third was "collection was by unlawful means", but we've conceded that in our documentation on 1st August. Tribunal: So you no longer press "collection by unlawful means"? Applicant's agent: Correct, correct. Tribunal: So you press "lawful purpose". Applicant's agent: Under s 9, the basis of our allegations is that the personal information was not collected directly from the applicant. It was taken at a time when the applicant is away from her personal information and the opportunity was taken by plan or by opportunity to take photos of (FTD's) personal information at that time, which is an evaluation document that she was preparing at that time with her clinical preceptor at NSW Ambulance – Miss Thorn. Tribunal: OK. Applicant's agent: And the third limb of this collection issue is s 10, on the basis that the respondent did not comply with obligation to let the applicant know as soon as at the time or as soon as possible after that, they had in fact collected the personal information from the applicant. And we do concede something here. In our original submissions, we said that there were also file notes produced at that time, one on 2nd February 2203 and another one on 2nd February 2023 by Miss Thorn and one on 8th February 2023, by her manager Ian Dryer, that we had originally said had breached s 10. But on our reading of the respondent's submissions on liability and the information in there, we can see that that that information was not collected, it was created internally within NSW Ambulance. So we concede that in respect of the file notes but not in respect of the photographic evidence. That's it for collection. We now go on the use. So in terms of use, we're saying under s 16 that the respondent did not take reasonable steps to ensure, having regard to the purposes that the file notes which I talked about just before the one on the 2nd and the one on the 8th, and what Ambulance described in its notice of decision as evaluation documents. This is effectively a merging of the photographs taken by Miss Thorn with annotations on those photographs to say that she was changing her evaluation of the applicant, to be below expectations in that form from "an original met expectations" in the document that she signed on 22nd January 2022. She signed the document on 22nd January to say that the applicant had met expectations of all learning outcomes in her clinical placement. She then took photographs of those documents while FTD was missing and then subsequently brought those documents into Ambulance and annotated on them that she was now changing her review to "below expectations", and that particular document was attached to the file note of 2nd February 2023 and sent to the University as feedback to the University on the applicant's experience during the placement. And effectively, as part of her assessment, the process by which assessments take place between the Ambulance and the University is that the evaluation documentation which was being completed on 22nd January 2023, is completed by both the applicant and the respondent (in this case, Miss Thorn) together as her preceptor. That document is executed, and the applicant leaves with that hard copy document in her possession and subsequently submits that into the University's assessment submission systems for marking, which is what the applicant did. She had the document with her executed by the respondent, by the preceptor, she lodged that with the University on 25th January 2023 and on 13th February 2023, she was advised by the University, notwithstanding that she'd logged docs to say that she'd met expectations of her learning outcomes, she was failed in the clinical placement. At that time, the University said there had been further feedback from the Ambulance Service, which was the file note of 2nd February 2023 with the Alternative Evaluation Documentation Annotated with the words "below expectations". And on that basis, the University failed the applicant in her clinical placement. Tribunal: OK. So is that the case on use? Applicant's agent: So the use issue is when the applicant finally got access to that e-mail. Well first of all, there's an e-mail on 8th February that was subsequently produced by Miss Thorn's manager, and it was effectively a summary for want of a better word, of the file note of Ashley Thorn on 2nd February, which the applicant got access to that under the notice of decision on 24th April 2023 and subsequently on the 14th November under Jack Henderson's internal review, she finally got access to her assessment documents that were sent by Ambulance to the University on 2nd February. And when she looked at those documents and what Miss Thorn wrote in them, we believe that they didn't meet the standard of being used in the way that the respondent did as a as reasonable assessment of the applicant in terms of her clinical placement. And so that's why we believe those documents don't meet the standard of being, you know, effectively accurate up to date complete and not misleading. We think they're all those things. In the negative. Tribunal: OK. Is there anything else about use? Applicant's agent: No, that's it. Tribunal: OK. What's the other item you wanted to raise? Applicant's agent: The other item is s 18, which is goes to disclosure. So we're saying that there is a sequence of events which was taking of the photographs, sending of the photographs to into NSW ambulance's systems, the attaching of those photographs to the file note of 2nd February and sending those photographs to the University, and we believe that to the extent of the photographs - not the file - that disclosure to the University didn't meet the standards of s 18 of the PPIPA. And that the disclosure was, the way we see it, not for the purpose with which the information was collected and the applicant was not likely to be aware that that disclosure had been made. And in fact, she didn't become aware until she obtained access under s 14 of the Act on 24th April 2023 - 3 months later. Tribunal: Is there anything else you want to say in your opening? Applicant's agent: No, that's it, thank you. Respondent's opening statement 1. Mr Allchurch provided an opening statement, during which the following exchanges occurred: On the last day of her placement, (FTD) approached Miss Thorn and asked her to complete the evaluation form, which required input from both the student and the supervisor/preceptor. (FTD) filled out her parts of the evaluation form and she waited with Miss Thorn while she filled out the rest of the evaluation form. She left briefly, at which point Mis Thorn took photos of the evaluation form on her phone. So, she came back, took the form and submitted it to her University. I do not understand those facts to be in contention. Sometime later, Miss Thorn sent the photos from her personal e-mail address to her work e-mail address. She prepared the file notes that you've heard about. She said in her file notes that she felt that she had not been able to give honest answers when completing the evaluation form, and that on review of her answers she was to change some fair responses from "met expectations" to "below expectations". As you've heard on 2nd February, that was then sent to the University of Tasmania, Suzanne Avis being the contact person. And then there was a subsequent file note on 8th February and I understand that this led to (FTD) failing her final clinical placement unit. You've heard the background of the applications for administrative review and the circumstances in which there are two proceedings being heard together. So I won't go into too much detail there. But just in terms of the first proceedings, all of the information that the respondent says is responsive to that application for personal information has now been released to the applicant. So, in terms of the Tribunal's task, it's not now considering the correctness of the reliance on the public interest considerations against disclosure by Mr. Kelly in the original decision or the correctness of the internal review decision by Mr. Henderson. The relevance of those decisions, as I understand it, is to the question of whether there was an excessive delay in providing access to the information, because I think in the written submissions it's described as a reckless application of the public interest test. So that's one of the issues in the first proceedings. Was there an excessive delay? And then the second one is, which is has the respondent undertaken reasonable searches, has to be determined by the evidence now before the Tribunal. And strictly, it's not a question of reasonable searches, the reviewable decision is whether the respondent holds any further information responsive to the application. Questions of reasonable searches are of course relevant to that determination, and there are some authorities on that from the GIPA Act that I can take the Tribunal to in due course. But the real question is, does the respondent hold further information? In the first proceedings and in the second proceedings, as you've heard, there are alleged breaches of collection, use and disclosure, and in a moment, I'll try and sort of frame the questions for you in for both proceedings. We'll come to the respondent's evidence and what that is, perhaps at a later stage. So at a high level, these sorts of things are actually relatively straightforward, despite the volume of material that's being filed. In the first proceedings, there's a submission that the respondent breaches the PPIPA by failing to provide the applicant with access to her personal information without excessive delay or expense. And the claim that the respondent holds further information arises if the application has not undertaken reasonable searches for that information. The respondent, of course takes the contrary position. In the second proceedings, the applicant submits that the respondent breached the PPIPA in relation to the alleged collection using disclosure of her personal information at the conclusion of her clinical placement. The respondent submits it did not do so. The respondent's position is, it simply must be able to deal with information regarding the performance of a student on a clinical placement, including by collecting it, using it and disclosing it to the student's University in the fashion which has occurred. Clinical placements are a key part of the education of students in health related occupations, involving students at educational institutions receiving practical education at public health organisations during their degrees. In this way, educational institutions and public health organizations work together to support the development of the next generation of the health workforce. And in working together to provide that part of a student's education, the educational institutions and the public health organisations have to be able to communicate about the performance of the students in their placement. And it would be in my submission, absurd to say that the PPIPA prevents the respondent from dealing with that kind of information in that way. As I alluded to before, this hearing is confined to questions of liability. So in the event that the Tribunal finds a breach of PPIPA, there will need to be further argument about remedies and relief. As I alluded to, there's large volume materials I'm not proposing to take you to all of it. I hope the Guide that I've prepared assists in your review of it in terms of materials. I say you should go to the respondent's submissions, which cross-reference underlying material, and the Tribunal should have regard to them any information that's cross-referenced. During evidence from witnesses, I'll take them to certain documents, and the Tribunal should have regard to those documents. I might also refer to certain documents during my oral submissions on Monday and you should have regard to those documents or those parts of the documents I go to. And of course, the applicant can do the same with anything that the applicant takes you to… 1. Mr Allchurch identified the following questions. In the 2023 proceedings, the first question is does the respondent hold any further information responsive to the s 14 request. That calls for consideration of whether the respondent has undertaken reasonable searches. But that is not the question in itself. The question is, does it hold further information in response? 2. The second question in the 2023 proceedings, is was there an excessive delay in providing information in response to the request? That should be considered as follows: (1) Was there was an excessive delay because of the earlier decisions to withhold some of the information on the basis of the overriding public interest against disclosure? As a matter of law that can't amount to an excessive delay. (2) Looking at all the circumstances, was the delay excessive? 1. In the 2024 proceedings, the first question is whether the respondent breached the IPP's relating to the collection of information and the evaluation form. Did the respondent breach s 16 of the PPIPA by creating the file notes of 2 February 2023 and 8 February 2023. The following exchange occurred: Applicant's agent: We understand that the Ambulance should be able to communicate with the University in relation to clinical placements. The issue for us is the photographs moving through the system onto the attachment. We believe that that as you say, there should be free and frank discussion between the Ambulance Service and the University in terms of assessments. We believe that the photographs that were attached to that document are not part of that. Allchurch: OK, I understand. Thank you. That's slightly different to what I had understood the applicant's case on disclosure to be. I had thought the complaint was about the sort of information in Miss Thorn's re-evaluation of (FTD). Applicant's agent: That's where we believe we're saying. Tribunal: Yes, that's what I thought we were saying. Applicant's agent: Can I clarify that that we still believe that when those when those file notes were sent to the University, there was an obligation under the Student Placement Agreement to provide (FTD) with her assessment, not to provide them to the University because it was (FTD's) feedback. It wasn't the process that the University had put in place, which was that the assessment documents go to (FTD) and they are not held by Ambulance. In fact, under the agreement, there's a disclosure condition that goes one way, which is that the University can disclose information, but that same that same provision isn't in the student placement agreement for Ambulance to hold documents of the student. The way the University works is, they say, print it out, take it to your preceptor, get them to agree on your assessment, whatever it is, good, bad or indifferent, and then lodge that hard copy document into the University systems. That no document ever gets sent to the University by the Ambulance. It doesn't go into their systems, the applicant or the student always takes the document away. In fact, the University gives instructions to the students not to leave their evaluation forms with the respondent. Allchurch: Well, on that basis, I think I may need to reframe some of the submissions that I was planning to make. Tribunal: I'm totally confused now because that's not what I understood the complaint about disclosure to have been. Allchurch: That's totally changed. Well, I'll put it this way. In my submission there was no breach of disclosure principles in sending Miss Thorn's updated feedback to the University of Tasmania. I think I now understand (the applicant's agent) to agree with that. And I will also be submitting that there was no breach of disclosure principles in sending the photos that Miss Thorn had taken of the evaluation form to the University of Tasmania. I will expand on the submission in due course. But in circumstances where the University of Tasmania had already received the evaluation form itself, there would be no disclosure of information to the University of Tasmania in it receiving photos of that evaluation form. The essence of disclosure is making known to a person information which they don't already know. This applies to information, not to the particular form of the information, so the fact is in a photo, rather than scanned copy of the document, it is relevant that UTAS already had the original evaluation form. So there's no disclosure to UTAS of that form. And so that will be the 5th aspect of the disclosure issue, which I may need to rethink and rearticulate. Tribunal: Yes, well, as I said, I'm now totally confused about what the issue is with respect to disclosure, because in (the applicant's agent's) opening, he said one thing and now he's just changed it. Applicant's agent: Maybe I didn't. I didn't explain it well enough. So, we are comfortable with the. respondent conferring with the University and exchanging file notes of the evaluation of the applicant and what we're comfortable with was the collection of her personal information and that flowing through to the University as attachments. So the substance of the file note, we believe is so that the Ambulance can confer with the University in terms of its assessment, but the disclosure of documents that we believe were collected without knowledge of the applicant and without telling her that they are being collected, we don't believe that is a valid disclosure. Tribunal: So what you're saying is your issue as far as disclosure goes, only relates to the photographs that were taken by Miss Thorn? Applicant's agent: Essentially, and I understand that and the respondent says that those documents have already been disclosed. Tribunal: Well. You haven't answered that question. Essentially, it's either yes or a no. You can't have it both ways. If you're not taking saying that there is a breach of the principles relating to disclosure with respect to the respondent sending file notes to the University, but you then say that you do have an issue with the photographs that were taken being sent to the University, I can understand that, but you can't answer my question by saying "yes, essentially" because that means "yes and no". Applicant's agent: Sorry if I could just clarify the file note is an amalgam of documents on one part. It is a narrative by the preceptor about her view of the applicant's performance. Tribunal: What parts of that document do you say breach disclosure principles? Applicant's agent: The attachments, we would describe as alternative documentation that change their evaluation to "below expectations". Tribunal: Is that just the photographs or something else? Applicant's agent: Correct. No, they are the photographs. They are the photographs of the… Tribunal: OK, so your answer to my question was "yes", not "essentially yes?" OK. Mr Allchurch are you able to meet that? Allchurch: I think I understand the issue as it's now put. Tribunal: So there's no issue with respect to the file note itself or the e-mail sending it to the University. The issue relates to the attached photographs that were taken by Miss Thorn. Allchurch: I'll expand on the submission in due course, but that's not a disclosure because the fact that there it was a photo of the form that the University had already received. Tribunal: Yes. Allchurch: And the personal information of that was not disclosed as a matter of law. Tribunal: Yes. That comes down to the legal definition of disclosure, which we'll deal with in due course. Allchurch: So, I'll have the opportunity to make further submissions later on that in due course. I think I'll leave it there. Tribunal: OK. Allchurch: In terms of how we proceed this afternoon. Tribunal: Well, you have Mr. Kelly here. Allchurch: Yes, we also Miss Thorn here. Tribunal: Miss Thorn is here? Allchurch: I wonder whether we might be able to come to Miss Thorn first. Tribunal: I think perhaps I think that's perhaps a good a good way to go considering that she has a long drive ahead of her and afternoon traffic on the M1 is a nightmare. Allchurch: I think Mr. Kelly is content with that approach. Tribunal: Yes, all right, so we will come back at 2:00 pm and you can direct me to Miss Thorn's evidence. We will admit that and then you can call her and we can take it from there. Evidence of Ashleigh Thorn 1. When the Tribunal resumed the hearing of the matter at 2:00pm, it heard evidence in chief and cross-examination of Miss Ashleigh Thorn. 2. The Tribunal invited Mr Allchurch to call the witness and take her through any examination-in-chief before making her available to the applicant's agent for cross-examination. However, the applicant's agent objected to this and the following exchange occurred: Applicant's agent: Senior Member the witnesses is our witness. We summoned her. She didn't initially give evidence, so we had to summons her here. It was us who wanted the examination in chief of Miss Thorn. Tribunal: Yes, but she is an employee of the respondent, so it is up to the Crown Solicitor to call her and swear her or affirm her and then make her available to you, OK? Applicant's agent: So we get the opportunity to lead with our examination in Chief if we've summoned her. I'm don't know. Tribunal: Well, you're calling her as a witness to basically ask her questions. Technically, it's cross-examination, but you've required her to be here answer questions. But because she is an employee of the respondent who is required to be here under a summons, the Crown Solicitor will, as I've asked him to do, call her. Swear her or Affirm her and then make her available to you. 1. The witness took an affirmation and Mr Allchurch then asked her some questions in chief, as she had not provided a statement in the respondent's case. Miss Thorn stated that she had been employed by the respondent as a paramedic for 5.5 years and that she had been stationed at Tuncurry Station for nearly 3 years (her 3 years would expire in February 2025). 2. In her evidence in chief, Miss Thorn stated that she was a preceptor for the applicant during a clinical placement from December 2022 to January 2023 and she explained the role of a preceptor, as follows: For a student we use preceptor as for other paramedics who are probationers and that's really to guide them during sort of that learning component that they're training for a year. I guess as a preceptor for a student, we're there to sort of protect them. It's hard because a lot of students come out at different points of their degrees. So usually we're trying to determine what they can and can't do and also we're going into some dangerous environments, so we kind of have to make sure that each job is appropriate for them to do, to utilize some skills that they've been learning and also demonstrate to us that they can do it so that we can mark them accordingly, sort of at the end of their time with us. 1. Miss Thorn stated that she had acted as a preceptor for one previous student, from Western Sydney University, which had a different marking system to UTAS. It uses an online portal where you mark them, but it's done after their clinical placement and in a safe environment that allows her to consolidate the last four weeks that I had with the student. That evaluation was completed "maybe a week or 2 weeks later." 2. In relation to completion of the applicant's evaluation, Miss Thorn stated that she thought she had two more days with her, but she learned that morning that this would be her last shift with her. They had been out on a job that morning and returned to the Station at about 10:00am, when she was handed the applicant's evaluation booklet. She stated: We sat at the kitchen table upstairs and she sort of sat there, sort of staring, I mean, were just talking about sort of her previous experiences and she said that she sort of struggled a lot with the last placement she'd done. I did feel uncomfortable. I don't think it was appropriate to be filling it out at that time. I think she made it seem sort of quite urgent that it was done there and then. It's the first time I'd seen it in the four weeks I was with her, so it was sort of hard to go through it slowly and appropriately without, you know, waiting for the phone to ring and to be sort of taken out of the office onto something new. 1. Miss Thorn stated that the student completes a section of the evaluation form and then the preceptor completes the paperwork. This was the first time she had seen it She said that she was aware that the applicant was completing it throughout the placement because she had to use scenarios that they had done. She stated: I wasn't even entirely sure what I was marking, so I was sort of trying to process that and think about the four weeks I had with her to see if I'd sort of, you know, come across situations where I could mark her appropriately. Yeah. And then so, the rest of that day, I felt quite uncomfortable at the time. We're not trained to mark students and I didn't feel it was appropriate to have discussions with her then that I thought that she was probably below what I expected of her. So, I think she must have gone to the bathroom and that's when I took photos of everything I'd completed because I thought I can't, I don't feel like I'm in a safe environment now and I need time to comprehend what we've done over the last four or five weeks. So I took the photos and then. I gave it back to her and that was pretty much it. The photos sat on her iPhone until I think we finished off the day. And I really like I took that home with me and I had to really think about my time with (FTD) and the fact that, you know, I'm marking her last placement, which yeah, as I said, we don't really get trained to do. So, I sort of reflected on the time and then, obviously with work we get very distracted, we're not in the office all the time. So I really made sure, I only gave time to it when I was in the office and had time to go through it. So I think I didn't relook at the photos till the following week and that's when I was able to sit down and actually read and comprehend what I was being asked for her to be assessed on. So yeah, about a week later. I took the photos because I don't feel like I gave the appropriate markings at the time. I felt uncomfortable and I feel like I marked her under duress, so I had some time to think about it, and I thought, right, I'm going to compile a file note giving my reasons why sort of giving a brief overview of the last four weeks we had had together some concerns that I had. And I mean it was always my opinion in this assessment. It wasn't, you know, the fact that I was marking her to go off on road. It was just what I expected of her and unfortunately through my reflection I found it was below expectations. I made the file note. That took me a bit of time. Obviously we work when we're at Station, we have access to computers and all that sort of stuff, but in the office that we're in, there's about 4 computers that all face each other. So it was quite a private thing I was doing. I've never done anything like this before. I was seeking some sort of mentorship from my Dorm at the time, from my Duty Operations Manager, Ian Dwyer. I think he was a bit stumped too, so I just sort of did what I thought I was like the best thing I could think of, so I've compiled this file note in my work hours, so if we were at Station we may be stationed for 10 minutes and then we're on a job. And then we're back for a few minutes. So it took some time and I only ever did it at work so I can't even remember how long it took me, but that's what I did. I sat in the computer room when no one else was there and compiled this document. The photos were there because I was changing what I'd originally marked on her assessment. 1. Miss Thorn stated that she attached some of the photos to her file note. However, there were two that she did not attach "because they weren't actually things that I had to change in the end. So at the time, like we work you know, in an environment where things could change very rapidly. I took photos of everything I'd written on and then I just used the photos that were used as evidence in my file note." She transferred the photos from her phone by emailing them from her personal email account to her work email account. She then had access to them on a work computer. There are four computers in the computer room and they are shared. 2. Miss Thorn stated that she rarely sends emails – possibly one a fortnight because they don't usually correspond via e-mail unless it is a follow up question about a job or something personal. Paramedics work on the basis that they need to communicate there and then so they make a lot of phone calls or text messages rather than emails because they may not always get back to the office to open it in time. 3. Miss Thorn said that she remembered being contacted by Shaun Kelly and asked to search for information about the applicant. He asked her to send him anything that had her name in in an e-mail. She believed that Mr Kelly tried to call her and she missed his phone call. She then got an e-mail from him and she then rang him back when she had the chance, but she could not recall the conversation. He asked for anything that she had sent via her e-mail for the respondent that has the applicant's name in it or any documents that she had ever had with her name in it. In response, she sent him her file note. She also typed the applicant's name into the email archive "to see what else popped up." She did not believe that she had any other records, because she hadn't spoken or emailed anyone prior to that assessment and she decided to do the file note and sort of change her assessment markings once she had time to reflect. 4. Miss Thorn said that she remembered later being contacted by Jack Henderson and he asked her to do more searches for documents. He wanted to know if she had taken any other photos of anything else that were in a plastic sleeve. She replied that she didn't remember there being any other forms or documents in a plastic sleeve. She communicated with Mr Henderson via e-mail, and she then spoken to him on the phone a few times because she was "quite confused about what was going on, to be honest." 5. Miss Thorn stated that she received a summons to produce documents, which required her to provide photos from her phone and emails, "like evidence I had sent it from my e personal e-mail to my work e-mail." In response, she went into her e-mail archive and sent Mr Henderson the e-mail that contained the photos that I sent from my phone. There was possibly two more photos to those that she sent to Mr Kelly. She stated: My brain was in like cognitive overload. It was off the charts. I was a bit stressed. And I thought, I'll just take photos of everything that I filled out, because it was I thought my legal document too. And then when I made the file note, I only needed to upload four of them, I think, as evidence to explain what I was doing, so the other two I didn't end up using… There were three words. Yeah. So there was a scenario and then it was this job complex or simple or something else? Yeah. So you'd comment how complex the job was and then it said were they below expectations? Did she meet expectations?.. I had made some comments on them. I think one of them even had my signature to sign off on it. But I didn't end up needing to use them. So they just sat on my phone with the other photos. Cross-examination of Ashleigh Thorn 1. The Tribunal asked the applicant's agent to clearly indicate and make sure that the witness had copies of the documents he was taking her to and to also make sure that the tribunal knew what he was talking about. The following lengthy exchanges occurred: Applicant's agent: OK. So I've got the same documents here from my questions. So do you want to, as long as they're the same documents as mine? Tribunal: So if you can direct the witness to the right bundle and the page number so that I can track what's going on as well. Applicant's agent: Yeah... Tribunal: In the interest of procedural fairness and probity, I would prefer the witness to have her attention drawn to the actual bundle. You, however, may use your extracted documents while you're questioning the witness. OK. So what is the first document that you wish to take the witness to? Applicant's agent: OK, so here's some questions on your qualifications. Can I just ask some other questions at the time on 22nd December when you started the placement with (FTD), in terms of a scale of most experienced to least experienced paramedic at Tuncurry Station at that time, where would you place yourself in that scale? Witness: Umm. Probably towards the lower end. OK, yeah. Applicant's agent: OK. And what briefing or direction did you receive from your manager, Ian Dwyer in regard to the general nature of the role of preceptor? Witness: None. Applicant's agent: Were you required to complete any specific training before commencing your role as preceptor? Witness: No. Applicant's agent: At the time you became aware of your role, did you have any concerns about your own abilities then to be able to perform these additional tasks? Tribunal: Sorry, how does that arise? What does that go to? How is that relevant to the issues that you've raised in this application? Applicant's agent: It's probative because what we're doing is we're testing the file notes produced by the witness. Tribunal: No, you're not. You're asking her about her clinical experience and her clinical experience is not an issue in these proceedings in any document I've seen. Applicant's agent: Yes. It's an issue in terms of whether the information in a file note was relevant, complete and not misleading. Tribunal: Well, that's a matter for me. And no, I'm not allowing that. It's an unfair question. I'm not allowing it. Applicant's agent: OK, let me take you to the matters of the actual clinical placement. How were you informed of your role as preceptor? Did it come to you from your manager? Witness: Like how was I told that I was supervising (FTD)? Applicant's agent: Yeah, yeah, yeah. Witness: I think I was told maybe a week prior that I might get a student. There's no formal process and I think NSW ambulance don't always get the information very early, so sometimes we turn up to work and there's a student there, but I think I was verbally told by my acting Manager that I would have a student in a week's time. Applicant's agent: So normally these things are coordinated centrally by Michael Corbett, the clinical coordinator. Did you obtain an e-mail from him at all to say to you were taking on student? Tribunal: Well, that's that is several questions. Allchurch: There's also a bit of evidence being given. Tribunal: From the bar table. Applicant's agent: Did you receive an e-mail from Mr Corbett? Witness: No. Applicant's agent: Did you receive the NSW Ambulance Preceptor guidelines that told you what your role was? Witness: No. Applicant's agent: So you received nothing. Witness: No, but when I signed up for the job, obviously in our contract it's sort of spoken about that in our time we will have students, but prior to actually having a student, we're not emailed like documents or anything formal. Applicant's agent: Right. Although we've put documents and evidence that say that there's a NSW Ambulance Preceptor Guideline that must go to each paramedic before a placement begins. Tribunal: If you wish to raise that as an issue, you can do so in another venue because it does not arise under the PPIPA. Applicant's agent: So you received nothing effectively and you didn't know what was going on to the student calendar. Is that what you said? Witness: Yeah, I knew I was getting a student a week prior, right? Applicant's agent: But no documentation about what your role was. Witness: Not from NSW Ambulance or the University, no. Applicant's agent: OK. I understand you're required to like assess students like in terms of their abilities when they come to you before you go out on road with them. How do you do that if there is no documentation? Witness: You mean like how do I assess if they're going to be safe? Applicant's agent: Yes, for patient safety and things like that. How do you assess their competencies if there is no documentation provided to you by the University directly or through the Ambulance? Witness: I can't answer that question, because we don't have time. A student will come with us. We sign on, we get a job and that's it, we're off. You know, half the time, you know, we let the student just observe for a little bit and if we're going to a dangerous job, you know, they're always going to be right behind us. You know, we're protecting them. So we sort of have to use our own judgment and clinical decisions on what a student can and can't do. Usually a student will hand us their booklets that have a little rough idea of what they can and can't do. Applicant's agent: OK. Tribunal: Did you receive a booklet from the applicant to your recollection? Applicant's agent: Was there any time just looking at the 4-week clinical placement, was there any time during the course of that placement when you escalated any matter to either Michael Corbett at NSW Ambulance or your manager Ian Dwyer in relation to the competencies or performance of (FTD)? Witness: My concerns… It's hard. I can't really remember the timeline. I actually emailed my education person and she couldn't help me. Applicant's agent: When did you do that? Witness: I can't recall if it was prior to her finishing or after. Applicant's agent: So this is during the 4-week clinical placement? Witness: I don't know. I can't recall. It was too long ago. I'm sorry. May have been prior or post. Applicant's agent: So you really can't recall any time during the 4-week placement where you brought to the attention of your manager or anybody else any particular issues with (FTD's) performance,. You can't recollect any occasion? Witness: No, we were fairly busy. I think I spoke to people. Applicant's agent: Who did you speak to? Witness: The person I was working with, my partner. Applicant's agent: And did they issue a file note? Witness: No, because she was my student, but she had concerns. Applicant's agent: So the partner was seeing exactly the same things for as you were, but she wasn't prepared to countersign your file note. Tribunal: I don't think that's a fair question. It wasn't her partner's document. Applicant's agent: No, but I'm suggesting, Member, that the partner could corroborate her observations because they are with each other twelve hours a day. Tribunal: Well, you haven't suggested that to the witness. You're making a submission from the bar table as if it's evidence. I'm giving you as much latitude as I can,… but there are limits. Applicant's agent: Were you aware, Miss Thorn, that (FTD) was a final year student? Witness: Pardon? Applicant's agent: And did you understand that this was the final clinical placement for (FTD)? Witness: Yes. Applicant's agent: Can you give us an indication across a four-week placement of the sort of days on and days off in terms of shifts… Like is there a time period that you're on and a time period you're off in terms of the amount of shifts over that four weeks? Tribunal: I have no idea what this is relevant to. Perhaps if you can explain to me how it's relevant to the issues under the privacy legislation, I'll consider allowing it. Applicant's agent: We're just trying to understand, given the opinions of the witness of the applicant, the extent of time she's spent with the applicant to understand and provide those opinions. Tribunal: And you can ask the witness if she has any recollection about the number of hours that they're on shift together during the placement. But I don't see where that takes me, and I don't see how that assists me to determine this dispute. Applicant's agent: So were you partnered with a second paramedic during all those shifts? Witness: I was, yeah. Applicant's agent: OK. And did they see exactly the same things that you saw? Tribunal: No, I'm sorry. This witness cannot possibly comment on what the other paramedic may or may not have seen. That is beyond her ability to comment. So that is an unfair question and I'm not allowing it. Applicant's agent: Well, do you both have the opportunity to observe (FTD) during the placement? Witness: Yeah, it would be impossible if she didn't. Applicant's agent: So you're effectively a team of three on every shift, including two paramedics? Witness: Always, but she was my student, so she was only allocated to me and only I was to assess her. Applicant's agent: OK and how many different paramedics were you on shift with over the course of the 4-week placement? Witness: It's hard to recall. I think I was with my main partner. Actually, no, she was part time. I can't recall. I'm sorry. It was too long ago. Applicant's agent: And can you recall whether those partners were aways more experienced than you? Allchurch: I do not see the relevance of this. Tribunal: This is this is not a complaint about supervision. Applicant's agent: We're just trying to establish whether the opinions of Miss Thorn are corroborated by the other person who had the opportunity to observe the applicant? Tribunal: This is this is not a complaint about the way in which the assessment was conducted. This is a complaint about breach of privacy principles. Applicant's agent: Our particular concern here is, is a complaint about the use of an opinion that we don't believe was complete and accurate. Tribunal: And you can make that submission if you if you are so instructed by your daughter to do so, but that does not make this question relevant to the issues that I have to determine in this matter. So if you would confine yourself to relevant matters, I would really appreciate it. Applicant's agent: Just let me confer with my questions for a second. The Ambulance and the University both have early intervention procedures for their students on placement, so nothing can get to the end of the placement. Tribunal: Are you putting to this witness that that is the case? Or are you asking her to make an assumption, based on what you've just said, that that is the case? Applicant's agent: We've put on evidence that shows that both Ambulance and the University have early intervention. Tribunal: Then please direct the witness to that evidence before you question her on it… Applicant's agent: At the very top there, it says that for urgent matters any time please contact either numbers below which is the unit coordinator, which is the university coordinator or the unit lecturer… So I'm just wondering whether if there were issues with (FTD) during the placement, whether you contacted the coordinator at the University to make them aware of any issues during the course of the 4-week placement. Tribunal: Well, can I just say before you ask that question, you need to establish where this witness had seen this document prior to completion of the evaluation. Because if she hadn't, how could she possibly know about it? You're asking questions based on an assumption. Applicant's agent: Well, I guess it makes it very difficult when the witness says that she's never seen any documents. Tribunal: Yes, that's right. And you're putting questions to her on the on the presumption that she has. Applicant's agent: Well, perhaps I'll ask this question. Had you seen this document from the University of Tasmania on page 30 of bundle 8 at any time before you completed the evaluation? Witness: No. It would have made things a lot easier for me, thank you. Applicant's agent: So did you receive anything? Any emails, any documentation at all that would provide to you contact details for the University? Witness: No. Applicant's agent: Or for the Ambulance Education Area - Michael Corbett? Witness: I never had any contact with Michael Corbett. Applicant's agent: No, I'm not asking whether you had any contact. I'm asking you whether you had the opportunity to contact him through knowing what his details were? Allchurch: Remember, again, I'm really not seeing the relevance of this question to the privacy legislation. Tribunal: It's not. Allchurch: I mean, I don't want to make the objection repeatedly. Tribunal: It's possibly relevant to proceedings in another in another venue that may or may not eventuate, but it's can't be relevant to the privacy complaint. The witness' evidence is that she did not see this document before she completed the evaluation. And I don't see what these questions possibly have to do with the alleged breach of privacy. Applicant's agent: Well, I can make that clear to the Member. If you would like me to. Tribunal: How does that question that you've just put to this witness relate to the complaints that you have made in relation to the privacy legislation? Applicant's agent: What we're saying is that the file note prepared by the witness, we allege is inaccurate, not complete… Tribunal: And how does how does that question assist me? Applicant's agent: Because what we're saying is you can't write an e-mail like that, a file note like that unless you've observed matters during the course of the 4-week clinical placement that would alert you to the fact that there were issues with the applicant's performance. It would have to happen in the 4-week placement. The fact that it happens in a file note that happens 4-weeks after the placement is concluded is very untypical of a situation where a student would have performance issues during the placement. Tribunal: (To the applicant's agent) you cannot possibly make that argument in this case. You have not filed any evidence to support what the usual practice is. You have not laid a safe foundation for the question. I disallow it. The evidence from this witness is that she completed the evaluation based on her own observations after the completion of the clinical placement. That is the extent of this witness' evidence. Can we move on to matters of relevance please? Applicant's agent: I'll move on to the matters of collection now. You mentioned in your evidence that you took photos of the applicant's evaluation forms while she was going on a rest break. Witness: Correct. Applicant's agent: Wasn't it the case that a colleague of yours approached her while you and the applicant were sitting next to each other and called her downstairs to do a vehicle check? Tribunal: Please don't answer that question, it's not relevant. It cannot possibly be relevant. Applicant's agent: I'm just trying to rebut the witness' suggestion that she took advantage of that to take the photos. Tribunal: You put to the witness that she took photos, it was put to the witness that she took photos while the applicant was absent. She agreed with that when it was put to her by the Crown Solicitor. How she came to be absent is not relevant one way or the other, and it does not assist this Tribunal to determine the matter. Applicant's agent: You said earlier, you recall the summons that was issued to you in June 2024. Witness: Yes. Applicant's agent: The documents you produced in that summons were photographs on your phone and emails that you sent from your iPhone to the Ambulance's storage systems. Why didn't you produce then during your searches for those documents? Allchurch: Senior Member I believe I asked that question already. Tribunal: You have and it's been answered. An extensive answer was given about this. Applicant's agent: OK. Well, maybe that's a question for Shaun Kelly, in terms of how he conveyed to the witness what to collect? We'll get to Mr. Kelly's evidence when we get to it… Tribunal: I don't know what I'm expected to say in response to that. I'm assuming it's rhetorical. You're welcome to question as a witness, but it has to be about matters that are relevant to the matter before me and that are within her own information and knowledge. Because anything she has to say about what anyone else may or may not have seen, is hearsay, and that does not assist me one way or the other. Applicant's agent: Can you recall whether you communicated with the University on 29th January 2023, the period between when you took the photos and when you sent the photos to your Ambulance e-mail address. Witness: I can't recall. I'm sorry. Applicant's agent: OK, I'm going to move on now to use, which is all about the contents of the file notes and issues around the file notes. I understand for privacy purposes that the law talks about opinions being genuinely held. My question to you, Miss Thorn, is can you confirm that you were not influenced or coerced by other persons in formulating the views and opinions attributed to you in these file notes? Witness: Are you asking me if it was my opinion? Applicant's agent: I'm asking you whether you were influenced or coerced by anybody to make those opinions. Witness: False. Allchurch: So, so you know, but I don't understand the basis for that sort of question. Tribunal: No basis has been laid. Applicant's agent: Well, if they're not her opinions, then… Tribunal: Then ask her if they are her opinions. Don't assume that they are not. Witness: That is my opinion. Applicant's agent: OK, so you confirm that you take sole responsibility for those opinions in your file nodes, which I'll go to now. Witness: You have a copy of my file note?. Tribunal: Where do we find that please? Applicant's agent: It's page 86 of bundle A of the 2023 case… In your file note you say "I also don't believe I have all the skills to be the most effective preceptor for FTD as I haven't had additional training to accurately evaluate her clinically". Witness: Yes. Applicant's agent: Can you elaborate on what you meant when you said that? Witness: I think it's pretty self-explanatory. This assessment was always my opinion. That's pretty much it. Applicant's agent: I'm not saying it's not your opinion. Witness: I know, but that's why I wrote that in there, because at the end of the day, I filled out her assessment and I let the Uni decide whether they wanted to pass her or not. I never set out to pass or fail her and it was never written in the assessment to "pass or fail". It was only ever what I expected from her. Applicant's agent: But what you say is that you don't believe that you could accurately evaluate her clinically. That's the view you held? Witness: Yeah, that's correct, because unfortunately we only get a certain amount of time with students. We're not going to be able to complete all the skills that may be required of her to pass her degree, let's just say and to be competent to go on road. Applicant's agent: We're talking about your skills here, not her skills, your skills to clinically evaluate her. Yeah, you're saying in this document in this sentence…. Witness: Yeah, because it's not designed for me to sit there and allow her to do a certain skill on a patient. That's not appropriate. I can't just make up cases and scenarios for her to just pull out these skills that I am required to see to pass it or not. Tribunal: So is what you're saying that you're operating in a real life environment and not a training environment? Witness: Yes. And there are educators, so that that comment also meant that I am on the ground level, I'm a clinical operations paramedic, we have paramedics in education that do have further certificates to sign off on skills and like to assess people appropriately. Applicant's agent: But Ambulance gave the job of being a preceptor to you. Allchurch: I question relevance. Tribunal: What is the relevance given the nature of the legislation. I understand the applicant is aggrieved by the process. With all due respect, that grievance is not relevant to the issue regarding use. You said you were now dealing with use of the information. Applicant's agent: Yes. Allchurch: Yes. Applicant's agent: Insofar as the document was an assessment of (FTD) and it was used by… Tribunal: Well, you you've heard the witness say it was her opinion. It was sent to the University for them to make their own decision. I am not here to determine whether or not the allocation of the preceptor role to this witness was appropriate or inappropriate. It is beyond my power to do so. Applicant's agent: Doesn't it have a bearing on the accuracy of the file note she produces though? Tribunal: Well, if you wish to dispute the accuracy of the of the file note, I mean she's made an admission against interest in it. It's not a good start if you're taking issue with the fact that the file note was sent. Applicant's agent: Let me move on. You say that you are not in any way saying you did a poor job as a mentor, but you just struggled as you believe (FTD) needs more help than you were able to give without being perceived as a bully or picking on her. Can you elaborate on what that means? Witness: I can. I just didn't know how relevant it was. I didn't realise we're going through my file now, but that's fine. So she'd made quite a few comments in her 4-week placement with me about how terrible her previous placements were. She stated numerous times that she'd been bullied and that the paramedics from her last placement were out to get her. So I didn't feel it was appropriate to give her my opinions at the time, because I didn't want her to see me as also bullying her, as that's the opinion she had from her previous placements when she was given feedback. Applicant's agent: You also say in another statement in this form, "I do not wish to be the deciding factor in FTD's grade for this unit. I don't believe I am qualified". But isn't that your responsibility as a preceptor? Witness: No. I'm not going to determine whether she passes or fails the unit. I was just given an assessment book and I assessed her for 4-weeks. I'm not at the University with her for two or three years. I don't have the qualifications to sign off on certain skills. Half the time, I'm just concentrating on my patient and patient care and the safety of (FTD) and the safety of my partner. These scenes that we go to, there's quite a lot happening at the time and involved. If we're lucky enough, we have a stable patient that you know we're allowed to do a very isolated skill. Then that's a win and we can assess that skill, but otherwise it's an ever-changing environment. That's why they have Uni so, that they can assess those skills. And I'm not trained to do that. I'm trained to work on-road and then obviously fill out an opinion piece when it's given to me. Tribunal: Does that answer your question? Witness: Can I just state that at the station at Tuncurry, we have paramedics in the job for thirty plus years and so when there's ten of those, and someone like myself who's been in the job for five years, I'm going to be on the lower end of experience. I'm trying to think who I was with at the time. It was so long ago. I'm sorry. And it's always ever changing. I can't comment. I'm sorry. Applicant's agent: OK. So given that you've talked about your reluctance to make decisions about )FTD) and about your abilities to assess her clinically. Tribunal: Well, with all due respect, that's not a fair statement of the witness' evidence. She didn't feel qualified to make a final decision, and she didn't believe it was part of her role to do so, which is the reason why the final decision rests with the University. What does this have to do with the use? Applicant's agent: Well, the final decision can't rest with the University because the University relies on the Ambulance to make their observations of the student. The university is just waiting for the assessment from Ambulance. It's beholden to Ambulance's assessment of the student. Tribunal: Right. And what document establishes that? Allchurch: Also, what is the relevance of that to a breach? The matters relate to issues between the Applicant and the University of Tasmania. Tribunal: That is a matter for not only a different jurisdiction, and possibly in a different State. We are not going into Federal diversity jurisdiction. No way. Applicant's agent: So I guess my question is, why did you given the statements you were making and the qualifications you gave because you did not feel comfortable about making decisions and your clinical abilities to assess her at any time? Did you turn to your fellow paramedics who were with you 12 hours a day and ask them for their corroborating views before you finalised yours? Tribunal: I think it's already been asked whether that she's said it's her opinion and she takes full responsibility for it. That has been asked and answered several times. This the file note contains this witness' own views and the note is not the views of any other person. Applicant's agent: But given the consequences of the final note for the applicant, the bar is raised in terms of assessing those opinions. Tribunal: I'm not here to assess the opinion. I'm here to determine whether there's been a breach of the PPIPA. Applicant's agent: I understand from my reading of the cases, and I can't recall which case now, but there are cases that go to the qualifications of persons undertaking opinions in terms of whether the use principle has been breached or not. It depends on the on the consequence to the applicant as to the level of the bar in which you assess the opinions given the different cases decided by this Tribunal. Allchurch: First of all, if (the applicant's agent) wants to go to cases that's fine. Second of all, I think those are matters submissions and not questions. Tribunal: They are. It's not a question for this witness. If you want to flesh that out when we come to your submissions, you can do so. I mean, it's not a matter for this witness to be asked how the Tribunal should assess her opinion. It's just not. Applicant's agent: And we're not asking that. We're just asking whether she sought corroboration from her fellow paramedics? Tribunal: And her answer was that this is solely her opinion and she takes full responsibility for it. Applicant's agent: You mentioned in your file note that and David Priddle countersigned it. That he had some issues that he observed with the applicant also. Tribunal: Please identify where that is. Applicant's agent: Oh, page 87… Which I think he's in the second last paragraph on the page. Tribunal: Thank you. Applicant's agent: So from a chronological point of view, I know that the file note was written on 2nd February, or at least finalised on 2nd February, and you mentioned the fact that David had some issues with the applicant during the 4-shifts he spent with her while you were on leave. I don't think you say that, but I understand... on the fourth line, it says "I was away for 4 of my shifts and she was with David Priddle, ICP from Tuncurry, who had raised concerns with myself also." So is that something you did in hindsight? Went to David for his views? Like was that part of the chronology when you left your shift, you were saying to David, I've had some issues with this applicant, can you pay close attention to her performance. Or was this something that was put in place at the time of the former? Witness: To be honest, I can't recall that was too long ago. I can't remember conversations. Applicant's agent: So you had you had issues with the performance of the student during your time with her and then she had to go then to David. Did you give him a briefing on what concerns you were having? Tribunal: No. Well, hang on. Can you let the witness answer the first part of what you just put to before you go on? Witness: So when I went on leave, David took up the mantle of being her preceptor. She still had to turn up and obviously complete her hours, and because I wasn't there, David stepped up and said "Yes, I'll take her". Tribunal: Yes. Witness: I said nothing. Applicant's agent: You said nothing about her performance? Why not? Allchurch: I'm sorry. What on earth is the relevance of this? Are they now suggesting that she used this information to breach the Act? Applicant's agent: But we're trying to establish whether the opinions are genuine, so we would expect if they were genuine that Miss Thorn would be having conversations with David. Tribunal: Well, that is that is a matter for submissions, but I have to tell you that based on the witness' performance so far, I believe she's very genuine. And she is entitled to her opinion. And as to the reasonable use or otherwise of that opinion, that is a matter for another venue, as I have previously said multiple times. There seems to be a suggestion being put to the witness that she poisoned the well. I don't see how that is relevant since it was this witness' value opinion and evaluation that was submitted to the University. How on earth is that is what you're putting to this witness relevant? Applicant's agent: What do you mean by poisoned the well? Tribunal: You just asked this witness whether she spoke to David Priddle when she went on leave about any concerns regarding your daughter. The only way I could possibly see that as being relevant was if it was some part of some sort of a submission that there was poisoning of the well going on, but even then that is a matter for another venue. I just do not see the relevance of it. Applicant's agent: The evaluation forms that you brought together after the conclusion of the placement, the photographs coming together with your annotations of "below expectations" that you brought in those two documents, give you an alternative assessment of "below expectations" and that's a document that requires your signature and her signature. Allchurch: Alright, so you know I'm confused as to which documents and I'm not sure that's a fair question. Tribunal: Yes. Are you now talking about the evaluation? Applicant's agent: The form. Yes I am. Tribunal: Would you take us to the evaluation form please? You can probably appreciate there are thousands of documents on the bench. Applicant's agent: Photos of the evaluation form are from page 89 of the bundle we're currently in. Those are somewhat smaller, but still legible to me. Tribunal: Which bundle was that? Sorry. Applicant's agent: Bundle A in 2023, at page 80, but if we go down to page 89, there are some photos. This is a extract of the evaluation documentation. So you can see here where it says "Preceptor comments" and the student's section ) on page 89) that it refers to "Learning outcomes". And if we turn over the page to page 90, we see the circle evaluations of the case, and "met expectations" was circled there with your comments underneath it. So this document requires both you and (FTD) to collaborate on it to finalise the document. Tribunal: When? In what way? Applicant's agent: Well, in the way that she is required under the Assessment Guideline to provide the student section to complete and talk about. Witness: Where does it say talk about that? I know she's to fill out a story, but it doesn't say that we're meant to discuss it. Tribunal: I think you perhaps confusing input with collaboration. Both parties are required to input into the document. Applicant's agent: Collaborate. Well, the collaboration takes place because the... Tribunal: Well, will you let me finish, please, before you jump in and tell me why you think I'm wrong? An evaluation document has two parts, the person being evaluated and the person conducting the evaluation. There are parts of the document that the person under evaluation has to complete, and then there are parts that the person that is doing the evaluation has to complete. Where is the document that establishes that "collaboration" was required in completing the document? I have no problem with the suggestion that there is input from both. I do have an issue with establishing "collaboration" in its completion. Applicant's agent: So on page 43 of the bundle D of the 2024 case. These are the instructions that the University provides to complete the document. Tribunal: Where does it say there has to be "collaboration" in completing the document? Applicant's agent: It says to pass this assessment, students should demonstrate their… Tribunal: These are instructions for completing the document input, inputting data. Where does it say that there has to be "collaboration"? Applicant's agent: Well, that's a feature of the process of completing the document. Tribunal: How? Applicant's agent: Because the what the student does, the student is required initially… Tribunal: The student does their bits, gives it to the assessor who does their bits, and it then gets submitted to the University. How is that "collaboration"? Applicant's agent: Because if there's a situation where the... Tribunal: "Collaboration" requires an agreed output. A document that's prepared in collaboration is more than one person's opinion. Applicant's agent: Well, they both signed this document together. So they must agree on it. Tribunal: The applicant, signed it because she put in her views. Applicant's agent: Yes. Tribunal: The witness signed it because she put in her views. How is this a collaborative document? Applicant's agent: Because what… Tribunal: It's not agreed on. It's not. I can see that I'm wasting my time. Applicant's agent: Because the applicant always has the opportunity, the applicant controls what goes in the student section and what goes in the student section is a case that she believes meets the learning outcome. If there is a disagreement between the student and the assessor as to whether the student met that learning outcome for that particular case, the student then has the opportunity to find another case that may be better represented, and to put that to the preceptor and through that process there is a "collaboration"... Tribunal: Thank you for giving that evidence from the bar table. Where do I find it in this document? Applicant's agent: Well, it's implied in the document because…. Tribunal: And again. It does not matter whether I'm trying to explain to you that it does not matter whether it's whether it's express or implied in the document, it's not relevant to the use issue that you're raising under the privacy legislation. And I understand that the applicant feels aggrieved this was the assessment that she was given and she disagrees with it and she wants to challenge it. She is welcome to challenge it, but not in this venue under the guise of a privacy dispute. Let's move on and I cannot make it any clearer than that. Applicant's agent: In your file note, you say that you felt the responses of (FTD), given her student comments for each learning outcome, were very basic and non-descriptive. Witness: Correct. Applicant's agent: One of those learning outcomes in the student comment section, which is on page. 89 of bundle A of the 2023 case, is the applicant's description there if I can read it back to you, says: "A case where I displayed leading the care of a patient was when my preceptor and I attended a 68 year old female with severe abdo pain, accommodated with nausea, vomiting, lethargy. During this case, I completed a primary survey, use PQRST acronym to find out more information about the patient's pain. I then completed a secondary survey, Abdo assessment and 12 lead ECG, to rule out anything cardiac related, then cannulated the patient to administer pain relief." What do you see as "basic and non-descriptive about that comment?". Allchurch: Senior Member, I am really not sure about this. These proceedings are not about the merits of the evaluation form. Tribunal: No, we're not doing a merits review of the of the evaluation form. We're here to determine whether there's been a breach of the privacy principles… I will sit on for as long as it takes to save Miss Thorn from having to come back to Sydney on Monday. Allchurch: Thank you. Applicant's agent: We raised this issue. We're saying how it's relevant. We raised it because... Tribunal: You can raise the issue, but it has to be relevant to the privacy dispute. Applicant's agent: We're saying it's relevant by the fact that we we've alleged that... Ambulance has breached s 16 use, as the opinions are not accurate. Tribunal: Then you can make submission in due course. But how can this witness possibly answer that submission? Applicant's agent: We are taking the witness to a description given by the applicant that she says is non descriptive and basic and we've just read it back to her and we're asking the question is it so? Because we're challenging the fact that the opinions given are accurate. That's all. Our relationship to the privacy provisions on use under s 16. Allchurch: So remember, Miss Thorn said that they're her opinions. She said that that genuinely held. Essentially, it seems to be that (FTD) is asking her to retract it or alter her opinions. Tribunal: You can make a submission in due course depending on what your client says, if or when she gives evidence, which she hasn't put in yet, about what she has to say about the opinion that the witness held. That's the question that you're asking? No I'm not allowing it. This witness cannot possibly comment on what you're putting to her. She hasn't been given the opportunity of hearing or reading any evidence from your client. How can she possibly be expected to respond to what you're putting to her? Applicant's agent: It's her opinion. Tribunal: No, you're putting to the witness, based on your instructions, that her opinion is inaccurate when there's no evidence before me to indicate that, because your client hasn't filed any evidence as yet. Do you wish to move on to something that's relevant to use, please. You're welcome to challenge the merits of the opinion, but not in this venue under the guise of a privacy dispute. Applicant's agent: During your earlier questioning, you mentioned that you thought you were under duress on the last day of the clinical placement. You mentioned that you didn't have additional training to accurately evaluate her, that you weren't qualified to take responsibility for decisions and so forth. Is it fair to say that on that last day, there were concerns at some level of sort of stress and anxiety of having to sign off on forms that you didn't feel you were qualified to do or make a decision on as opposed to being under duress? What I am saying is, did you find it difficult to make difficult decisions? Allchurch: That is an enormous amount that's being put to Miss Thorn there. I'm having trouble keeping track of everything that's been put to her. Tribunal: You can put a series of propositions to the witness, provided that they are clear and distinct, and she knows what it is she's being asked to comment on. I will then rule on its relevance. Applicant's agent: Did you have a level of stress and anxiety on the last day in sighting those documents? Witness: I think completing that sort of paperwork, knowing that we're working in an environment where the phone could ring at literally any second, but also we see quite a lot of cases and jobs, so I'm also trying to bring forth memories of what we've done, trying to compile my knowledge and put that to paper within 30 minutes, and like in front of my student who I hadn't really been able to reflect on properly yet, so I wanted the time to go back over the last 4-weeks and be sure that this was the choice I wanted to make because that's like it's a big thing, you know. Obviously the Uni has taken this and chosen to evaluate her based on that. So it wasn't like it was an easy thing for me to just think up overnight. It took time. So there probably was a little bit of stress and anxiety with it. And I didn't really want to sit there and have an argument, but (FTD) gave me the impression that she's a strong girl and she obviously will fight for what she believes in. And I probably wasn't in the safest environment to have that appropriate conversation with her, with no one else around. If that makes sense. Applicant's agent: It does. What I would say though to that is that in that situation that you found yourself in, why you took the opportunity to complete the documents and circle them "at expectations" for all the learning outcomes, why in that situation wouldn't you just abstain from signing the documents? Witness: She would have had questions that I hadn't been able to reflect on and give her the most appropriate answers on at the time. Applicant's agent: And she's in your environment, so you have access to your leadership. She has no access. Witness: No, no one was at the Station except for me and my partner. From what I recall, my Duty Operations Managers are extremely busy people. They're not on Monday to Friday on normal hours. I can't even recall if they were there or not. Applicant's agent: So you just pushed ahead and signed the documents as a true record, but you had feelings that they weren't. Witness: I did have my feelings about it The lines were a bit blurred. I wasn't really given the appropriate amount of time, the appropriate amount of information to make the correct calls and I'm also working at the same time, you know, like I'm rostered on. You know I can't give all my attention to this one item that's happening there and then because I've also got to restock from the last job or you know, do my timesheet like there's things going on at the same time. Yeah, that's all I have to say. Applicant's agent: So to take you back to that day then, you didn't have a lot of time, but how much time in fact was there when you were having this conversation with (FTD) at some time during that day. What period of time did you have?... Tribunal: I'm going to break that down. Do you have any recollection of the amount of time you spent completing this on the day? Witness: Not really. I think maybe 30 minutes. Tribunal: And was that because the end of shift was approaching and you had to go? Witness: (FTD) was talking a lot about sort of previous things and. I knew that then and there that I wasn't going to do an accurate assessment. And she was finishing up that day. So I knew she really wanted me to finish it so she could submit it. So I pretty much knew that if I didn't complete it there and then and then we would get a call and I'd be doing it at the end of my shift. Tribunal: So am I hearing you say, without trying to put words in your mouth, that you felt pressured to do this and get this done at the time? Witness: Yeah, yeah. Absolutely. So that adds in with obviously the cognitive load of being on duty… She could potentially fail the degree, you know. You take on a lot of emotions with that sort of information and you know, and then you look within yourself, you know, am I an accurate preceptor for her? But it's all written in the file note and I stick by everything that I've written in that file note. Applicant's agent: You were in the lunch room and you're saying you're under a workload, a tight workload. When was your next case that day? Witness: I can't tell you. I'm not sure.. Applicant's agent: So was it you don't know whether your next case was 5 minutes later?. Tribunal: And the witness just said that she has no recollection of that and I query its relevance. Applicant's agent: Well, we only asked the question because the witness is saying that she felt stressed and pressured given her other duties, but we're asking her, did those other duties crystallise? Tribunal: And this witness has told you that she has no recollection of that, given the passage of time. Again, it might be relevant to a merits review of the assessment, but that is not a matter for me to conduct. Applicant's agent: In your same file note you say that (FTD) put herself at risk when she would, on multiple occasions, wander off and not tell paramedics where she was going. For example, took herself off to Woolworths, which is located next door to Station, outside the Ambulance grounds. Witness: Correct. Applicant's agent: So those comments imply that (FTD) was doing something that was forbidden, when she briefly left the Ambulance. Allchurch: But this is still relevant to a merits review of the evaluation form. Tribunal: What it has to do with breach of privacy and use of this file note I do not know. Applicant's agent: We're going to the accuracy of the comment. Tribunal: Which is a matter for submissions. You can put whatever your client says in submissions, once she has given her evidence, which she has not yet given. You're putting the cart before the horse. Applicant's agent: Do we have an option to.. Tribunal: No, because it's not in evidence before me. Applicant's agent: But that's what we're trying to do today, aren't we? Senior Member. Tribunal: No, you are asking this witness questions about her evidence. Applicant's agent: And her oral testimony today is not her evidence? Tribunal: Please don't put words in my mouth. That is not going to work here. I have told you multiple times what the limits of this the relevance of your questions are. You clearly don't agree with me. Applicant's agent: No, no, I don't. I'm trying to understand. Tribunal: Well, I don't know that I can make it any clearer than I've made it in relation to the previous times you've tried to ask questions of this nature. I am not here to conduct a merits review of the opinion expressed by this witness. I am here to consider whether submitting this is a breach of use under the privacy legislation. If your client wishes to take issue with this with these matters, with the merits of the opinion that has been formed by this witness, she is welcome to do so in another venue under different legislation. Applicant's agent: Thank you. I might move on to access now, so I am going to move onto reasonable searches that you were required to undertake by Shaun Kelly. By what means did Shaun Kelly contact you again? Witness: He phoned me. I missed it. He sent me an e-mail. Applicant's agent: Thank you. Did he relay to you the extent of the applicant's request for her personal information? Witness: He said she had a right to have anything with her name in it that was documented by NSW Ambulance. Applicant's agent: But he didn't provide you with the actual request?... Witness: I actually can't recall. He may have. Tribunal: Isn't that a question to be put to Mr. Kelly? Applicant's agent: It will be, yes… Allchurch: I asked her questions about the circumstances of that in chief so, to some extent, I think she has already answered this question. Tribunal: She has. Any questions about what Mr. Kelly did or did not do can be put to Mr. Kelly in due course. Applicant's agent: You mentioned that you early in your evidence that you emailed the educator in relation to (FTD). Why wasn't that document included in your reasonable searches? Witness: It was an e-mail. Applicant's agent: Do you have the Unit coordinators' details for UTAS?. Witness: I said that I have a student. I don't think I mentioned her name. Applicant's agent: You didn't mention her name in that correspondence? Witness: No, no. Applicant's agent: Why didn't you choose to, when you did your searches, to send the e-mail and the photos on your phone to Mr. Kelly? Allchurch: So you remember, I think I explored that in chief. Tribunal: You did. It's been asked and answered. Can we move on please? Applicant's agent: Were there other items information that were known to you held by Ambulance that you did not forward to Mr. Kelly? Witness: Like what are you referring to? Applicant's agent: I don't know. I can't speak for you in terms of any documents related to the whether they have her name on them. Witness: I just did it based on my memory and what I could find when I Googled her name in emails in my e-mail archive. Tribunal: And the so you did a name search on your e-mail archive came up with this? Witness.: Yeah. My file note, yeah. I didn't spend an extensive amount of time on this. As I said, we work in an office when we do get back to Station and half the time I'm rushing to do things so, again, a lot of this stuff is done with a little bit of urgency, and not a lot of time probably spent on it. But I sent what came up in the search. Applicant's agent: Mr Henderson mentioned in his statement in these proceedings that you had a telephone conversation with him on 5th June. Allchurch: Should we provide Mr. Henderson's statement to the witness? Tribunal: I think would be fair… Applicant's agent: So you have that document from Jack Henderson, who says that on 7th June you advised him by telephone that at the time you took those photographs on 22nd January and that Ambulance had not provided you with a work phone and you were expected to use your personal phone. Witness: Yes. Tribunal: I think we heard earlier today that there was no issue that the witness was required to use her personal mobile phone. Applicant's agent: So when you say you expected to use your personal phone, that is that something for which you get, like, official written Ambulance authority or is it some other basis? Tribunal: What's it relevant to? Applicant's agent: We're trying to establish the first time that the applicant's information was collected by the respondent for the purposes of our allegations that they breached collection principles. Tribunal: Earlier today, you said you said it was a particular date, so is that now being changed? Well? Applicant's agent: We're just trying to understand. Allchurch: So, you know, s 4 of the of the PPIPA outlines the definition of when information is "collected". Tribunal: It's not in dispute. Allchurch: We can make submissions about whether the photographs on the mobile phone of Miss Thorn involved "collection". Tribunal: Yes. That is not a question to be put to her. Applicant's agent: What we're trying to do is just trying to establish at the first point when they were collected, where they collected on her phone or where they collected it, when they were sent from your phone to the ambulance e-mail system. Tribunal: That's a matter for legal argument. That's not a matter for this witness to answer. She's not legally trained. How is she going to know the legal definition of "collection"? Applicant's agent: We're not trying to do that. We're just trying to establish whether we can rely on the fact that her phone is a component of the NSW Ambulance system, given that she had authority to use her phone. Tribunal: Wasn't this established this morning? I'm pretty sure it was. Applicant's agent: We didn't, we couldn't post… Tribunal: I'm not talking about you asking this witness this morning. This was canvassed this morning. Applicant's agent: Not. Not directly. Not this this question I'm asking. We established that the photographs were taken on an iPhone. We're trying to establish now whether that iPhone is in fact, an extension of the Ambulance's IT system. Allchurch: Remember I can only repeat what I've said that the question of whether it's collected for the purpose of the PPIPA is a legal question. It is not in dispute that she took the photos on personal phone and emailed them from her personal phone to her work e-mail address. Tribunal: Yes. Nothing flows from it. Can we move on, please? I was told this morning that the period of the breach commenced with the taking of the photographs and then the transmission of those photographs by e-mail to the Ambulance's e-mail system. Now if something else is going to be argued, I'd like to know why and why it wasn't put this morning in your opening? Applicant's agent: Can I take you to the second search in so when you were contacted by Jack Henderson? Again, I understand in evidence, there's an e-mail going from Jack Henderson to you on 27th November… Tribunal: Is this in the 29th May statement? Applicant's agent: This is in the statement of Jack Henderson, the exhibit JH-1 of Jack Henderson dated 29th May at page 139… Tribunal: OK. What's your question to the witness? Applicant's agent: Yes. So, this e-mail demonstrates that Jack Henderson contacted you on 27th November. Did he contact you at any time before 27th November by telephone or otherwise? Witness: I can't recall. I don't believe so. This this would have come back out of the blue. Quite randomly for me, so I don't think I'd had any communication with him. Applicant's agent: Your recollection is this is the only time. Witness: I think so, but I honestly I can't recall, it's a little bit of a blur. OK. I would say so if it's the only e-mail. Applicant's agent: Yeah. And you mentioned you, obviously responded to this e-mail. Tribunal; OK. Yeah, alright. The question would be for Jack Henderson on his e-mail. And the constraints put on that e-mail. Applicant's agent: OK, I won't ask any more questions on that. Tribunal: Do you have any further questions for the witness? Applicant's agent: No Senior Member. Re-examination of Miss Thorn 1. The Tribunal asked Mr Allchurch if he had any questions for the witness in re-examination He replied that there was one question that he wished to ask the witness. The following exchanges then occurred: Allchurch: Miss Thorn, you were taken to your file note and we might go back there if you have a copy to hand, which I think is the 2023 proceedings bundle at page 86. And (the applicant's agent) read to you the sentence: "I also don't believe I have all the skills to be the most effective preceptor for (FTD), as I haven't had additional training to accurately evaluate it clinically." What did you mean when you used the word "accurately" in that sentence? Witness: A lot of the skills that we're doing on jobs. They're not just in isolation on a mannequin. There's emotion behind it. You're dealing with people's lives, people's problems, you know, in their homes. I don't think skills can be accurately assessed on-road, like if it's an isolated skill I guess you can assess how people react in environments like that, but that's pretty much what I meant by "accurately" you know. I'm trying to complete my job effectively, safely, with everything else going on that you almost forget that you're also assessing a student who you know is in a certain point of her degree. And to them it's so important that I'm, you know, I'm dealing with, you know, family of the patient and the scene. If there's police involved like it, it can be quite overloading and that's what I meant by "accurately". Allchurch: So in saying that you didn't have the skills to assess it accurately, you weren't saying that the file note was not your genuine opinion? Witness: No. Allchurch: Sorry, I'll put that more simply. Is the file note still your genuine opinion? Witness: Yeah. I think at the end of the day, it's still my opinion. Allchurch: Based on what? Witness: Based on my training, my experience, where we were and what we saw. It was my opinion and assessment and I pushed more towards my opinion because at the end of the day, I still don't believe it was my responsibility whether she passed or failed. I think the University still had their job to do. Umm. Yes, and that's what I tried to do. 1. The Tribunal excused Miss Thorn from further attendance. 2. The Tribunal queried Mr Allchurch regarding the order of witnesses for Monday 19 August 2024. He suggested dealing with Mr Kelly (who was under summons) followed by Mr Henderson. The Tribunal concurred and stated: Then the applicant can present her statement and (the applicant's agent) can provide me with his index of document relevant documents. And we'll proceed from there. 1. The Tribunal stood the matter over on a part-heard basis until 10:00am on Monday, 19 August 2024. Day two of the hearing 1. When the hearing resumed on 19 August 2024, the Tribunal asked the applicant's agent if he had "done his homework" and complied with the orders made on 16 August 2024. The following exchanges then occurred: Applicant's agent: I had some family matters on the weekend, so I didn't. But what I did is put my effort into producing a list of expanded questions for the applicant to put her evidence on orally in terms of her factual information. Tribunal: No. We don't do oral evidence here, except in extreme circumstances. And when there was an order made at the end of February for oral for evidence to be filed. No, that's not going to. Happen. What about your list of documents? Applicant's agent: My list of documents… I should have brought to your attention on Friday, that the 2 red bundles that I have filed into the Tribunal on 1st August are effectively our final submissions and arguments, which were referenced meticulously into the 10 bundles and references are a significant subset of those 10 bundles, so we've cut it right down in terms of the footnotes in the submission to submissions for both proceedings on 1st August. So there is no need to because I put a lot of effort… Tribunal: Well, there is because I am not going to read through 2000 pages of documents in an attempt to identify documents that you think are relevant. Applicant's agent: And that's why I'm saying all you need to do is read the red-bounded documents, there are two of them. Tribunal: Is that the totality of the documents you're relying on, or are you seeking to rely on documents that are elsewhere? Applicant's agent: I'm relying on the two red-bound documents, and to the extent that they are referenced into the bundles, which is a significant subset of what's in the bundles. The bundles are probably, you know, 1000 pages and what I've referenced are probably maybe 100. Tribunal: Well, before we finish the matter today, you are going to go through them and you are going to extract the documents that you say are relevant, because I'm not going to cart around 2000 pages of documents. Applicant's agent: So all the documents that are relevant are footnoted in the two bundles and to get them... Tribunal: I have to what cut them around and pull them out? Applicant's agent: Well, they're referenced directly into the into the bundles. Tribunal: They might be referenced directly into your documents, but I need to look at the source documents which are not in those red-bound documents are they? Applicant's agent: No, they're in the bundles. Tribunal: Correct. Allchurch: So Senior Member, would you be assisted by electronic copies of all of this material that could be arranged? Tribunal: No, because then I've still got print them out. So you haven't you haven't complied with the orders that I made on Friday? Applicant's agent: Well, I had some things, some family developments on the weekend, and I couldn't do that. And then I remembered on Sunday that I had referenced these documents meticulously. Tribunal: Is the applicant aware of what documents you're referring are meticulously referred to in these in these documents? Applicant's agent: The applicant has read the two bundles and she's familiar with them. Tribunal: OK, so perhaps while you're presenting the case as her agent, the applicant can actually do what I asked you to do the other day and pull out the documents that you say are relevant so that there is a single bundle that needs to be looked at? Why are you looking at me like that? Applicant's agent: Because I'm just concerned that I want my applicant focused on the hearing today and not on administrative matters. Tribunal: Well, I'm sorry if you feel that complying with an order of this Tribunal to allow you to run your case, is an administrative matter. She is the applicant. I can't make you do it. I'm simply telling you that if you don't do it, I am not going to be carting around 2000 odd pages of documents and there is more than 1000 pages here. And pulling out bits and pieces and then being faced with an argument down the track that I ignored evidence... It's not going to happen. Applicant's agent: Senior Member, what I can do is at the conclusion of the hearing day today, I can go back through those documents and pull them out. Tribunal: No, I ordered you to do it over the weekend. I understand that you've had some family issues. I don't know what those family issues are. However, now in day two of the hearing, I don't know what of these multiple thousands of pages of documents are relevant and what aren't? Applicant's agent: Those documents are all the documents footnoted in these two bundles. Tribunal: Right then, one of you can pull them out. You seem to be having difficulty accepting directions from me. Applicant's agent: No, I understand what you're saying. Tribunal: And you're saying, and you're saying that you can't comply? Applicant's agent: I didn't want to… Tribunal: Comply with that. Applicant's agent: I can do what you're asking me to do, but I would like the time to do that out of the hearing because there's 10 bundles there and it's got a long time to do that. Tribunal: Yes, I understand that, and as I told you the other day, there is no direct evidence. I made orders and those orders have not been complied with. Applicant's agent: But I couldn't comply with them, Senior Member. It was the weekend and sometimes on weekends, personal matters arise and I had to deal with those matters. Tribunal: And you made the decision to give personal matters preference to the Tribunal proceedings and you're quite entitled to make that decision. I don't have to agree with it. Applicant's agent: I didn't. Tribunal: And this is not going to delay the hearing of the matter, but in any event, if by the time we finish today, I do not have a single bundle of documents for the applicant, then it will significantly delay the decision in the matter. Applicant's agent: Senior Member… Tribunal: I have given you a lot of latitude… I have given you a lot of latitude. I cannot make you comply with my orders, but if you don't do so and you have chosen not to do so for whatever reason, then that tells me that you have very little respect for this Tribunal and you bear the consequences. Applicant's agent: I have every respect for this Tribunal. I just had to prioritise. Tribunal: If you had respect for the Tribunal, you would not have prioritised personal matters. Excuse me, you've told me you prioritised personal matters. Applicant's agent: I didn't choose to. There was a need to Senior Member. Tribunal Right. And what was that need? Applicant's agent: Well, that's a personal matter. Tribunal: OK. No, it's alright. It's a personal matter. The Tribunal is not entitled to know the reason why the applicant's agent was unable to comply with its orders. So be it. Applicant's agent: Do you believe that's procedurally fair though? Tribunal: Wait, wait. I have given I have given you every opportunity to comply with the orders and I allowed the matter to proceed despite the fact that there was no direct evidence from your client in breach of orders made in February. I allowed you to cross-examine a witness on matters that were relevant to the PPIPA. Applicant's agent: We continue… Tribunal: I have given you a lot of latitude. If you now want to complain about lack of procedural fairness, at the end of the day if you are aggrieved by the decision that I make, you can file an appeal. I will not tolerate this attitude that the Tribunal can make orders, but you weren't able to comply with them because you had to deal with personal matters that you won't tell me about. So that's OK. Applicant's agent: I am bringing to the attention of the Senior Member that the documents have been referenced into a much more succinct document. Tribunal: But in order to find them, I have to go through almost 2000 pages of documents to find them. Applicant's agent: No, you don't. All pages are referenced directly to the page numbers in the one bundle. Tribunal: Right. So you're saying it's the duty of this Tribunal to prepare your evidentiary bundle? Applicant's agent: No, I'm not saying that. You're right. All I'm saying Senior Member, is that there's a referenced by page number and whether I extract those documents out of the 10 bundles and put them in a separate bundle, the process will be the same, you will need to go through each document. Tribunal: I will be looking at the documents that you deem to be relevant to your case. Applicant's agent: Yes, but what I'm saying is member that whether they're in a subset of the 10 bundles or in the bundles themselves, you can go directly to the documents. There's no extra time for you. Tribunal: But they're not in a subset, it's in the bundles. I am not going to be carting around 2000 pages of documents that may or may not be relevant. Applicant's agent: Well, that's a definition. Tribunal: I am not going to repeat myself again. I have made a direction. I made orders on Friday. They have not been complied with in any way, shape or form. Neither of the orders that I made on Friday have been complied with. You're now telling me that I can go through the documents, because you don't have time to do it or you have time to do it, to prepare the bundle of material that you say is relevant to your case, so be it. Applicant's agent: I'm saying Senior Member that it won't take you any more time. Tribunal: Enough, enough. This is not a debate. Allchurch: If I can make just a gentle suggestion that hopefully may assist in this. There will be a lunch adjournment, during which time (the applicant's agent) has time. Tribunal: This matter this matter should have finished on Friday. This matter should have completed on Friday. It did not because of the issues we had in the morning. We are not going to be dealing with this all day. Applicant's agent: Sorry Senior Member, why should it have finished on Friday? Tribunal: Well, considering we wasted an hour and a half in the morning for me trying to explain to you why you had difficulties because you had not filed any direct evidence. That took up almost an hour and a half. Then we kicked off, and we had issues about when witnesses were available and what documents are relevant in the matter. It should have completed on Friday for the very narrow issues that are involved in it. Applicant's agent: But I made statements on Friday that we have filed statements in our evidence bundles on 17th which includes our facts and evidence. Tribunal: You have filed submissions or what you described as "hybrid documents". I gave you the opportunity to remedy that situation before we started today. It has not happened. Applicant's agent: Our statements are in our bundles. Tribunal: (Applicant's agent) I give up. You are simply ignoring everything I have to say. So be it. Evidence of Shaun Kelly 1. Mr Allchurch called Mr Kelly, who appeared in answer to a summons to give evidence issued by the applicant. He took an affirmation and he then gave oral evidence. Evidence in chief 1. Mr Kelly stated that his current role is Superintendent, Acting Executive Staff Officer for Finance and Corporate Services and that he has been in that role for twelve months. His described his responsibilities as "a chief of staff kind of role reporting directly to the Executive Director for the whole of the Corporate division for NSW Ambulance." He also that that the respondent's legal team is part of Corporate Services who report directly into the Executive Director for Finance and Corporate Services. He has been with the respondent for 15 1/2 years, primarily as a paramedic and in various management roles within the paramedic hierarchy, before he took up his current role in 2023. 2. The witness stated that he deals with applications for access to information under the GIPA, as well as other requests for information under the PPIPA, subpoenas for information and coronial inquest requests for information and Chapter 16A's. The PPIPA requests are requests under s 14. He stated that the respondent averages 20 to 30 GIPA and PPIPA requests per month. He had no prior experience making decisions under the GIPA Act or the PPIPA. 3. Mr Allchurch asked the witness if he recalled working on an application for access to information in which (FTD) applied to respondent under s 14 of the PPIPA? He replied that he recalled making a decision under the PPIPA on 24 April 2023. He stated that at that time, there were "a few ongoing matters in regard to PPIPA requests for the applicant. And that specific one was a request for information regarding a second a period on-road as a student paramedic in the Tuncurry area. And I think the specific time was in December 2022." He said that when the request was received, it took about two weeks to acknowledge it. He then went through the specifics of the request and reached out to all the parties that information was requested from and he started gathering information regarding that request. The following exchanges occurred: Allchurch: Do you recall who the parties were that you reached out to and how you reached out to them? Witness: Well, I know obviously it was Ashley, who appeared yesterday, Ian Dwyer was the second one, and I think from memory there was a request for every single person at the Station. And then Susan Avis, I think, but I actually haven't refreshed my memory since last year in terms of the other people that were involved in that request. Oh Michael Corbett, I know his name was raised yesterday, as well as non-specific people in terms of the liaisons for NSW Ambulance that dealt with the University, and how we interacted with them. Allchurch: And do you recall what information you received back after you contacted these people? Witness: For the most part, there wasn't a great deal of information received back. I know that the file note was received from two people named in the application, so I think Ian Dwyer and Ashley had a file note and then a Word document with photos annexed to it. These were the primary ones, and then obviously the accompanying emails that were sent between those two, and from what I recall the University. Allchurch: Do you recall being issued a summons in this matter because you're here? Since you were issued with that summons, have you refreshed your memory of (FTD's) request by looking at any documents? Witness: I reviewed the decision that I made and then I've just gone through, basically just trying to make myself aware of the time-frames that we had in that as well. But there is not a great deal of information that I've reviewed in terms of that. Allchurch: Sorry, I perhaps I skipped a step. When you say you've reached out to all the parties who are involved in the application, how did you contact them? Witness: So initially I wanted to speak to them first and let them make them aware that an application had come in to retrieve information from their personal inboxes or any communications that they've had. And then I followed up with each of the people named in the application. I sent them emails and in those emails I outlined exactly what they needed to produce specific specifically for them. And I think I did this so I wouldn't actually send them the application themselves, so they wouldn't be kind of like overloaded with information to see what was requested across the whole application. So each individual would have got individual emails outlining the time frame. Allchurch: And was that your usual practice for dealing with applications of that kind, not to provide the application itself? Witness: I didn't really have a specific process I followed for each application because under the PPIPA we didn't get a great deal of applications. But for that specific one, that is how I did. And I think at the time that was the first PPIPA application that I managed. That was essentially the way I wanted to manage it with the staff. Cross-examination of Mr Kelly 1. The applicant's agent cross-examined Mr Kelly as follows: Applicant's agent: Thank you. You talked about qualifications and so forth in terms of your general qualifications and in terms of PIPPA applications, is there any special qualification or training you need to do to be a privacy contact Officer for NSW Ambulance? Witness: I'm not sure. Applicant's agent: But you didn't do any precision training? Witness: Apart from on the job training? Applicant's agent: I think you mentioned three people that you conveyed emails to and were they the only three people you contacted by e-mail in terms of your searches? Witness: I would have contacted everyone that was named in the application, but I can't recall right now what the list of names that were on there, and also given that the substantial amount of names weren't named, it was just a kind of like a blanket request for every person at that Station at that time. Apart from the ones named, which are the ones that produced documents, I couldn't recall, but I definitely sent everyone that was named emails. Applicant's agent: Jack Henderson has issued a final statement in this proceeding in relation to his review of your emails. Tribunal: Do you wish to refer the witness to the statements? Applicant's agent: Yes, I do. Can I provide you with the… Allchurch: No, I've got copies. Tribunal: Yes, if you could facilitate that, please Mr Allchurch. Allchurch: Do we need the exhibit as well. Does he need the exhibits? Applicant's agent: I'm sorry. This statement or just let me, yeah. Just bear with me. I thought I had on file. It's not there do does he need or can we? Tribunal: You're the one asking him questions. If you wish to take him to something? Applicant's agent: Yeah. Yeah, Jack Henderson's statement. Tribunal: Which one? Applicant's agent: It's Jack Henderson's statement of 29th May, at para 32. Tribunal: It's on page 7 of the statement. Witness: Yep, I'm at 32. Thank you. OK. Applicant's agent: So in there, I think he says that you contacted Ian Dwyer, Ashley Thorn, Michael Corbett to effectively conduct searches. So this is his review of your work and his view is that you only contacted those persons. Allchurch: That's not the evidence. That's not what it says. Tribunal: The document doesn't use the word "only". Applicant's agent: How did you contact? I gave evidence here on Friday that… Tribunal: You didn't give evidence. You're not a witness in the proceedings. Applicant's agent: Sorry. I said things to here on Friday. Tribunal: To whom? Applicant's agent: To the Tribunal, when gave me thirty minutes to give you a brief overview. Tribunal: You're referring to your opening statement. What does this have to do with this witness' evidence? Applicant's agent: In my opening statement, I mentioned that we were concerned that reasonable searches hadn't been made. Tribunal: OK, the witness is here for you to ask him questions. He is not here to listen to speeches relating to your opening submissions. If you have no further questions for this witness, I will excuse him. I'm aware of what your case is. Thank you. Applicant's agent: I do have more questions. Tribunal: Then please get on with them. Applicant's agent: After receiving your instructions, after they received the instruction to undertake the searches, did any of those officers come back to you with clarification of what they were required to do? Well, you had the phone conversation first, is that right? Witness: A lot of them didn't get in contact and in my e-mail, I basically said I tried to contact you by phone, this is what's been requested and I'm happy to have a conversation with you. Then in clarifying with Ian Dwyer and Miss Thorn, we had conversations basically just outlining what the request is because I'd never heard of it or seen one before. And I wanted to put them at ease in terms of what they needed to provide. And then they were the main follow-up ones and I also followed up, I think, a week later with Mr Corbett regarding Education. Applicant's agent: OK. Can I take you to the request itself, the access requests itself in bundle A of 2023 at Page 1. This is the application itself from (FTD). It's prescriptive in manner. How did you convey to the persons you were contacting what they were required to collect in their searches… From a distillation of this document? Witness: Sorry. Tribunal: Well, the witness has already said several times that he reached out by telephone and then by e-mail. Applicant's agent: No, no, I'm not talking of the method I'm talking about looking at this document. Tribunal: Then please clarify exactly what you want this to ask this witness, because what you've just asked is the answer I've just given you. Applicant's agent: Yes. I'm doing that. This document is quite a prescriptive document. Witness: Well, it's a request for information. Applicant's agent: It is and it has six categories of information and within those categories, a prescriptive description of what's required. How did you convey to those persons you are asking to do the searches asked for in this document given the level of detail in this document? Tribunal: Are you asking his witness if he can recall what he said to each of the people that he contacted? Applicant's agent: No. The witnesses said he sent emails to each person, and so those emails must be a distillation of what's in the request. And I'm trying to understand how he conveyed a two-page document with six categories in it to those individuals. What was the extent of your e-mail in in in comparison with the extent of this request? Tribunal: Do you recall what you put in each of your emails? Witness: Ohh, I can from how it looks in my own mind. Obviously, whether all the names are in every single category, or to one person, I would have listed out the 6 categories to see if they have any information and then I just put the dates in. Applicant's agent: So you didn't exclude any of the six categories from the emails for the information that you asked them for? Witness: Not I can't recall, it was 12 months ago… I don't think I would have, but I mean... Applicant's agent: Is it possible? Tribunal: That's not a fair question. If you can lay if you can lay a solid foundation for the assertion that information was excluded from the request, you can ask that question, but this witness has already said he doesn't recall, but he's got no reason why he would have. There has got to be a reasonable basis for the assertion. So far you haven't provided one. Applicant's agent: Let me move on to the searches. It is it correct to say that the methodology employed the search for the records for the three officers contacted by e-mail was to review their NSW Ambulance e-mail accounts for sent and received emails? Allchurch: Senior Member I don't wish to be overly pedantic. Tribunal: It's not a question for this witness. There's also a proposition in there about three officers, when I think the witness' evidence is that it was not confined to three officers. You can ask this witness what he instructed the other officers to do. Applicant's agent: Point made. Tribunal: What they actually did and how they actually did it is a matter beyond his personal knowledge. Applicant's agent: Was there any instruction in your e-mail as to how they should search for the emails, or the documents, the personal information you asked them to search for. Witness: I think in the e-mail itself it would have just asked for any documentation that was relevant to the applicant or had the applicant's name in it. And I would have in general terms spelled that out, but don't think I was overly prescriptive in terms of how they should do their searches. I mean, it's pretty self-explanatory. You just type in a name and review your emails. I'm sure you'd be very familiar if you had emails in regarding the topic. Applicant's agent: Yes. To avoid anybody doing those searches that you've asked them to do.. To avoid any inadvertent missing of any emails in their e-mail boxes when they're doing the searches you talked about, is there a procedure that Ambulance uses to centrally search the Microsoft Exchange you use or whatever e-mail system you use. Is there a system to centrally search the system where you can provide a query and say just search for (FTD's) name for all emails going to the persons named in the request. Allchurch: … I think there's too many propositions there. It would help if they were broken down, but perhaps first, you know what e-mail systems there are and then… Applicant's agent: What e-mail systems do you use? Witness: Microsoft Outlook is that "Exchange" that you're referring to? Tribunal: Part of the Exchange program? Witness: Yeah. Tribunal: I think what you're being asked, and I'm not entirely sure about this, is other than the individual officers conducting a name search on their personal or their work e-mail, is there a central database or archive that can be searched by management? Witness: I would suggest yes, but that would like an IT request that you need to put specifically through. I don't think it's normal practice to do that. I mean, when the searches came back, they came back very quickly and there was no query as to what they were producing. Tribunal: And would such an IT request be utilised for example if one of the persons named in the request had left the Ambulance Service? Witness: I mean that would be more feasible. They wouldn't have access to their own inboxes. But from the technical side, I wouldn't know, but I'm assuming that the archived inboxes would just sit there, so it would be possible. Tribunal: Yes. But obviously, if the officer that was named in the request was no longer with the service, they couldn't do the search, so management would have to do an IT request to access that database. Witness: That's correct. Yeah. OK. Applicant's agent: And for the persons who were named in the access request, so the access request talks on in item 1 to two NSW Ambulance paramedics operating from Tuncurry Station, so it doesn't give a name. It gives a group of people. Wouldn't that be a case where you would have used a central IT search to search on those people, given that you don't have a name? Allchurch: Remember, I think that this has already answered that he did ask those people to conduct searches. I'm remembering. Tribunal: I'm not going to allow that question. Applicant's agent: In your role, wouldn't it be a comprehensive search to undertake the search essentially in terms an IT search? Tribunal: That's already asked and answered. Applicant's agent: Is there ever a case where you'd use a combination of local searches in terms of asking the person to search their mailbox and also doing a central search? Tribunal: Other than the scenario I've just taken the applicant the witness to? Well, if you lay a proper foundation for that question I'll allow you to put it to him. But so far you haven't. Applicant's agent: Stay with me. Did any of the three NSW officers that you contacted by e-mail? Tribunal: That's not the evidence. You can ask him about the responses that he received from three officers. He has said several times now that he contacted more than three officers. Please don't mislead the witness in your questions. Applicant's agent: I'm not trying to mislead the witness. Tribunal: Please just get on with it. I realize that a lot of your questions are pre-prepared, but please make allowances. That's not the evidence. Applicant's agent: I'm trying to do that. That's the pauses in my questions. Tribunal: I understand that, but be fair to the witness. Applicant's agent: The three NSW officers you did contact by e-mail. Tribunal: Who responded to your e-mail. Applicant's agent: Whether or not they responded. I'm asking, I'm identifying… Tribunal: I have said several times to you that this witness' evidence is not that he only contacted three officers, but you persist in putting that proposition to the witness and I will not permit it. You can ask him about the three officers who responded to his emails. Applicant's agent: Thank you. In terms of the three officers who responded to you by e-mail, did any of those officers ever express to you a preference that the personal information that they were providing to you should not be disclosed? Witness: So when you say three, are they are the ones that replied with information, or the ones that replied with "I don't have information?" Applicant's agent: The ones that just replied with information. Witness: OK, no. They never said don't disclose my information. Applicant's agent: Was there any other person who said that? Witness: No. Applicant's agent: Were you aware or did you take part in any communications between NSW Ambulance and the applicant's University in relation to her request? Witness: I don't... Tribunal: Do you want to clarify that a bit please. Did this witness liaise with the University of Tasmania? Applicant's agent: The witness was going to respond. Tribunal: Well, I'd like you to clarify your question because I didn't understand what you're asking the witness. Do you think perhaps you can do that? Allchurch: Remember, I'm also not sure that's the basis on which Mr Kelly was summoned to give evidence and understood the basis on which the summons was issued in relation to him, and I don't think there's any suggestion of his involvement… Tribunal: No. it was issued in relation to his response to this request for information. Let me hear the question again and I'll make a decision. Applicant's agent: Were you aware or take part in any communications between NSW Ambulance and the University of Tasmania relating to (FTD's) request prior to completing your notice of decision on 24th April 2023? Allchurch: That is two questions. Applicant's agent: Can we let the… Tribunal: That is two questions. Excuse me. I'm allowing you quite a lot of latitude because you're not legally qualified, but there are limits. There are two questions in that proposition. Applicant's agent: Can I pose those questions separately? Were you aware of any communications between NSW Ambulance and the University relating to (FTD's) request prior to completing the notice of decision on 24th April 2023? Witness: Was I aware or was there a communication sent to me? No. Applicant's agent: And therefore the second part of that question that I've broken up is, did you take part in any communications between NSW Ambulance and the University of Tasmania relating to (FTD's) request prior to completing the notice of decision on 24th April 2023? Witness: So the question is, did I receive communications from UTAS?. Applicant's agent: Did you take the part in any communications, whether you're sending them or receiving them? Witness: I can't recall if I sent or received information, are you referring to Susan Avis? Applicant's agent: No one in particular. Witness: OK, I'd have to go through my inbox to see if there was communications regarding this request. Applicant's agent: Would that be unusual for that to happen in in a privacy situation? Tribunal: Hang on a minute. What is the basis of this? The witness said he doesn't recall. Applicant's agent: We're trying to establish that… Tribunal: Well, you may continue to talk over the top of me at your peril. Applicant's agent: So you asked me a question, so I was trying to answer it. Tribunal: I was trying to explain that I not allowing that question, but you keep talking over the top of me. I'm not allowing that question. Applicant's agent: This question Senior Member goes to whether there was any influence placed on Mr Kelly to change his decision or to alter his decision. Tribunal: And you have not laid any proper foundation by way of evidence and I am not allowing it. Applicant's agent: But Mr. Kelly has replied that… Tribunal: Mr. Kelly has replied that he does not recall. With all due respect, an answer that a witness does not recall something that is put to them does not lay a foundation for an inference of that nature. Now can you move on to something that is relevant to the privacy dispute please. Applicant's agent: I go to your decision on 24th April and I also go to Catherine (name illegible)'s decision, which was an earlier matter for the applicant, which is… Tribunal: That is not part of these proceedings. Applicant's agent: Senior Member… Tribunal: You can ask this witness about matters that are directly relevant to this matter. Applicant's agent: And I believe this is relevant because his decision is almost identical to (her) decision, and I want to understand... Tribunal: It is not his decision. You can make submissions if you want but I am not allowing you to cross-examine this witness on another officer's decision in a different manner. Applicant's agent: I'm not cross-examining him on that decision. I'm cross-examining him on his decision… and why it's the same. Tribunal: I'm not allowing the question. It can't possibly be within this witness' personal knowledge. Applicant's agent: Were you aware of that decision? Allchurch: Senior Member again, it's not relevant. You've made a ruling. Tribunal: Unless it relates to this matter that's before me. It's not relevant. Applicant's agent: Remember our proposition? Tribunal: I understand your proposition, it's not relevant. Applicant's agent: I haven't stated my proposition yet… Tribunal: You've stated your proposition several times. Applicant's agent: My proposition is that Mr Kelly had no original thought or critique of the application in terms of the application of the public interest test and just relied on how Catherine Crilley did it in her decision, given the identical nature of her decision with his… Tribunal: What does that have to do with the reasonableness of searches, which is supposedly what this questioning relates to? Applicant's agent: No. It's got everything to do with his application of the public interest and nothing to do with reasonable searches. Allchurch: Senior Member in the decision… Tribunal: Didn't we work out on Friday, that the documents had been produced and the public interest test was not relevant? Why are we going backwards? Applicant's agent: Because I'm trying to understand whether he has brought a critical mind to his decision on the use of the public interest test, or whether he relied on a previous version of a decision. Tribunal: Your client has had these documents now in total since November last year, has she not? I am now standing in the shoes of the respondent making a decision. Applicant's agent: Yes. Yeah. Tribunal: What you're asking this witness about is historical and it's not relevant to the privacy dispute that is in front of me. Now I can't make my position any clearer than that. You may continue down this track and I will give you some leeway, but I warn you, you are coming to the end of it, if you persist in ignoring my rulings. Applicant's agent: So can you answer that question? Tribunal: No. I have disallowed the question. Now you can ask this witness questions that are relevant to the current matter before me or not. Applicant's agent: Don't you sit there. I could go down that track. Thank you, Senior Member. Tribunal: And for the record, seeking to question this witness about another officer's decision is not relevant to this dispute. Applicant's agent: I wasn't questioning about the other decision. Tribunal: You put to him about Miss Crilley's decision. Please move on. Applicant's agent: Mr. Kelly, were you influenced by others on how to formulate your application of the public interest test? Tribunal: As I said, It's not relevant. Please move on. You have not laid any proper foundation in fact for that assertion and I disallow it. Applicant's agent: Mr. Kelly do you understand that the NSW Crown Solicitor was engaged on an almost identical matter in relation to the applicant in terms of internal review? Tribunal: Does it relate to this particular application or do I have to repeat myself again? Applicant's agent: If I can complete the question. Tribunal: No, because it does not relate to this matter. Applicant's agent: Can I complete the question and then then you can make your decision. Tribunal: Does it relate to this witness' decision? Applicant's agent: I believe it does. Tribunal: This witness cannot answer questions about the Crown Solicitor's involvement in relation to another matter. Applicant's agent: I believe it does. That is not the question. Tribunal: What is the question and I'm warning you, you're on very thin ice now. Applicant's agent: The question is, look I understand that the Crown Solicitor was engaged on a previous matter to undertake an internal review. Given the fact that your decision was fundamentally looking at a similar factual situation to the previous decision, did you seek out the views of the NSW Crown Solicitor in your decision? Tribunal: No. I have made a ruling. You may ignore the ruling if you like, but if every time you just ignore my ruling and persist in this line of questioning, I'm going to disallow the question. Applicant's agent: No. Just let me clarify. Mr Kelly, I want to move on to the details of your decision on 24th April 2023. At the bottom of page at the at the last paragraph on page 7, you refer to "Personal factors of the application". Witness: 5.2, Yep. Applicant's agent: And there you say a view can be formed that the applicant's motives in obtaining this information is to identify specific informants that have submitted information about the applicant. Can you see that? Witness: Yeah. I'm reading para 5.2. Applicant's agent: Can you outline your reasoning as to why (FTD) would have a motive to identify persons she has already identified in her request? Tribunal: With all due respect, there were a number of persons in the request that were not identified by (FTD). Applicant's agent: Those by name or those by grouping? Tribunal: If you wish to put a proposition like that to the witness, you need to lay a proper foundation for it, and I question the relevance, considering that this is now an administrative review and the documents have been produced, and I am now standing in the shoes of the respondent to make the correct and preferable decision. Applicant's agent: Are we able to go to decisions and findings on the motive of the applicant? Tribunal: How is it relevant to the decision I now have to make? The decision has been overturned on internal review and the documents have been produced to your client. Applicant's agent: Well, our proposition… Tribunal: I am now the decision maker. There is no longer a dispute about personal factors of the applicant and the documents have been provided. Applicant's agent: Our proposition Senior Member is that if the public interest test was applied in the right way on 24th April, the applicant would not have had excessive delay in receiving the documents and would otherwise have received them on 24th April rather than a later time. Tribunal: That is a matter for submissions. Applicant's agent: And what we're trying to now is establish is whether an element of that decision was incorrect and perhaps with other matters that go into his decision of whether to hold information back, there may have been a case where we would have got our information sooner rather than later. Allchurch: Senior Member, as you say, it's a matter for submissions. Tribunal: This does not assist me one way or the other. This matter is finishing today and I'm only going to give you limited amount of time to deal with this witness because you're just ignoring my warnings and going off down rabbit holes and fishing, because there is no proper factual foundation in the applicant's evidence for any of this. I understand that is your proposition, but you have not filed any evidence in support of it. I'm giving you a lot of latitude here, but there are limits. Applicant's agent: So we cannot question the decisions made by NSW Ambulance? Tribunal: I am asking you to move on to matters that are relevant to what I now have to decide. I am now the decision maker. This is historical. You may make a submission and I expect you will make a submission that there has been excessive delay in producing the documents. You may do that at the appropriate time, but it is not a matter to put to this witness. Now I'm not going to make another ruling on this. Applicant's agent: I understand now. Thank you Senior Member. As I've said before, I'm not a legal person. Tribunal: Well, you've had enough direction from me from me. This is now approaching 1 1/2 days and you persist in asking your pre-written questions. Applicant's agent: Understanding the legal problem. Tribunal: Regardless of any rulings I make. Now I can't make my position any clearer. You are reaching the end of the time I am going to allow you to have with this witness. So would you please move on to something that might possibly be relevant to what I now have to determine? And by the way, when it comes to presenting proceedings in a Tribunal, ignorance is no excuse. Applicant's agent: Because of the law, yes. Tribunal: If you choose to represent someone in legal proceedings, you are expected to least have some basic competence or willingness to abide by rulings. I cannot make it any clearer than that. Applicant's agent: I'm not a specialist in in privacy law. Tribunal: Well, you could have instructed someone. Applicant's agent: So you know, but before I continue my questioning, can I seek your direction as to if I can't ask questions on motive then I can't ask questions on each of the public interest considerations against disclosure that the respondent made. Is that correct? Tribunal: I am making the correct and preferable decision based on the information that is available to me at this date. This is history. How many more times do I have to say that it's in the past? I'm not bound by it. The documentation has been produced to the applicant since at least November last year and some of it earlier. Can we please move on to relevant matters? Applicant's agent: Thank you. Tribunal: If there any further issues of this nature, I'm going to allow the Crown Solicitor to re-examine and then excuse the witness. This is just time wasting. Applicant's agent: I'm not trying to time waste. Tribunal: Please get on with it. Applicant's agent: Just let me clarify… Tribunal: I remind you that this is not actually the decision that I'm reviewing, so makes it even less relevant. Thank you. 1. Mr Allchurch did not wish to re-examine the witness and the Tribunal excused him from further attendance. Evidence of Jack Henderson 1. Mr Henderson was required by the applicant to attend for cross-examination in relation to his statements that were filed in the matter. He was called and affirmed. 2. The Tribunal admitted Mr Henderson's statements into evidence as follows: 1. Statement dated 29 May 2024 and Exhibit "JH1" – Exhibit A; and 2. Statement dated 7 June 2024 – exhibit B. 1. In Ex A, Mr Henderson stated that he is the acting Associate Director of Legal Services at the respondent and that he has been in this role since October 2023. Prior to this role, I was employed by the respondent as a Senior Legal Officer. He was admitted in May 2012, after which he was employed by the Crown Solicitor's Office and Office of the General Counsel, Department of Justice. In his current role he is responsible for overseeing the work of the Legal Services team, part of which includes: a. Dealing with applications under the GIPA Act; and b. Handling complaints, applications for internal review and applications for access to personal information and health information under the PPIPA and HRIPA. 2. The Associate Director of Legal Services is assisted by the positions of Senior Legal Officer and Senior Administration Officer. There is a Privacy Contact Officer who is primarily responsible for handling matters relating to the PPIPA, although in practice that work is shared between members of the Legal Services Team. He referred to his Exhibit JH-1which is organised by tabs, which are the tab references in the balance of this statement. 3. Mr Henderson stated that the applicant has participated in two student clinical placements with the respondent, which took place: (1) Between 25 December 2021 and 21 January 2022 ("first placement"), at Kogarah Superstation; and (2) between 22 December 2022 to 22 January 2023 at Tuncurry Station ("second placement"). 4. He stated that the applicant has made a number of applications under the PPIPA Act for access to her personal information held by the respondent and for internal review of conduct by the respondent. Each of these applications related to the personal information that the respondent holds in relation to her clinical placements. He set out an overview of those applications, and the steps taken by the respondent in dealing with them. First internal review 1. The applicant's first request for access to personal information, and the internal review she sought in relation to that request, are not the subject of any current proceedings before the Tribunal. He therefore did not include all of the correspondence relevant to that request and internal review in his statement. However, to provide some background to the interactions between the respondent and the applicant that are the subject of these proceedings, a brief overview of the events relating to the Applicant's first access request is set out at [10)-(25)] of his statement. 2. On 24 August 2024, the respondent issued a Notice of Decision on her first access request. This decision was made by Kathleen Crilly, who was then the Privacy Contact Officer/Associate Director Legal Services and is currently Director, Corporate Governance and Legal Services. He included a copy of this decision at Tab 2 of Exhibit JH-1. This identified 14 documents held by the respondent that contained information falling within the scope of the first access request, but stated that the respondent had determined to refuse access to some of the information in those documents on the basis that it was subject to an overriding public interest against disclosure within the meaning of s 13 of the GIPA Act. 3. On 24 February 2023, the applicant applied for an internal review in respect of that decision and a copy of that request and its covering email is found at Tab 3 of Exhibit JH-1. 4. On 28 February 2023, Ms Crilly wrote to the applicant and advised that the respondent had decided to refuse her application for internal review under s 83(1) of the GIPA Act, as the request was made more than 20 working days after the notice of decision was given to her. A copy of this letter and its covering email is found at Tab 4 of Exhibit JH-1. 5. On 20 March 2023, Ms Crilly received an email from a Senior Privacy Officer within Legal and Regulatory Services at the Ministry of Health. This email advised that the Ministry of Health had received a request for assistance from the applicant in relation to the respondent's decision to refuse her request for an internal review. Further, the email advised that, in the Ministry's view, the request for internal review was valid, as the relevant timeframe for the application to be made was the one applicable under the PPIP Act (six months), rather than the shorter one under the GIPA Act (20 working days). A copy of this email is found at Tab 5 of Exhibit JH-1. 6. The respondent then instructed the Crown Solicitor to conduct the internal review, as the Ministry had advised that it should be conducted by somebody "not involved in the original decision". 7. On 11 July 2023, the Crown Solicitor completed that internal review and provided the applicant with notice of decision. In summary, this decision found that the information sought by the applicant, which Ms Crilly had decided to partially withhold, should be provided to the applicant in full, except for the names and personal information of students other than the applicant contained in one document (described as a "Placement Allocation Report"). A copy of that decision and its covering email, excluding the documents that were released with the decision, is found at Tab 6 of Exhibit JH-1. 8. Following this internal review decision, the applicant continued to correspond with the respondent about a number of matters relating to her first access request. On 14 August 2023, she emailed the "privacy contact officer" address, copying the Crown Solicitor's Office, to make a number of "further enquiries" about the internal review decision. A copy of her letter and its covering email is found at Tab7 of Exhibit JH-1. Among other issues raised in this letter, the applicant noted that some of the emails which the respondent had decided to withhold in its initial decision on 24 August 2022 had not been released to her following the internal review, and asked that those emails be provided. 9. On 25 August 2023, Mr Henderson responded to the applicant, noting that her letter appeared to request additional records that were not sought in her original request, and suggesting that she make a fresh request for that information. 10. On 18 September 2023, I received a further email from the applicant, reiterating that her "immediate and main priority" was to obtain full copies of the emails that had been partly withheld in the decision dated 24 August 2023, and which the first internal review had recommended should be released to her. A copy of the email chain referred to is found at Tab 8 of Exhibit JH-1. 11. On 17 October 2023, Mr Henderson wrote to the applicant to address the matters raised in her correspondence dated 14 August 2023 and 18 September 2023. He noted that the Applicant had made a second request for access to her personal information on 15 March 2023, which was then the subject of a second internal review. To avoid confusion, he expressly noted that his letter only related to the first access request, and not to any matters arising from her second access request. A copy of this letter is found at Tab 9 of Exhibit JH-1. 12. In relation to the access request that is the subject of the current proceedings, Mr Henderson stated that as far as he is aware from review of the records available to him, the applicant did not provide an explanation in her request of the purpose for which the information was being sought, or an indication that she required a response within a certain timeframe. 13. On 31 March 2023 and 6 April 2023, the applicant sent follow up emails to the same "privacy contact officer" email address, stating that she had not received an acknowledgement of her second access request, and asking when the information requested would be provided. On 6 April 2023, those follow up emails were responded to by Mr Kelly, who was then an A/Senior Legal Officer. Mr Kelly advised her that he was taking steps to collate the information requested, but that he was experiencing some delays due to a number of staff at Tuncurry Ambulance Station being on leave. A copy of this email chain is found at Tab 11 of Exhibit JH-1. 14. On 24 April 2023, Mr Kelly issued a Notice of Decision in relation to the second access request.33. In the Notice of Decision, Mr Kelly stated that he had decided: (a) to Release an Excel spreadsheet and the photographs of the evaluation form to the applicant in full; (2) to Release two email chains and the file note dated 8 February 2024 to the applicant in redacted form, as he considered that the redacted information was subject to an overriding public interest against disclosure, applying the test in s 13 of the GIPA Act; and (3) To withhold the file note dated 2 February 2024 in full, as he considered that this entire document was subject to an overriding public interest against disclosure, applying the test in s 13 of the GIPA Act. 15. On 13 September 2023, the applicant sent an email to Mr Kelly, requesting an internal review of his decision. A copy of that request and its covering email, excluding other attachments, is found at Tab 13 of Exhibit JH-1. The applicant said that she was seeking review of the following conduct by bye respondent: (1) "Conduct related to public interest considerations", on the basis that Mr Kelly made "material mistakes of fact" and "errors of fact and judgment" in deciding that some of the information sought in the second access request was subject to an overriding public interest against disclosure; (2) "Conduct related to searches caused to be conducted", on the basis that Mr Kelly should reasonably have conducted additional searches to identify the information sought by her; and (3) "Conduct related to information about personal information held by NSWA". In relation to this aspect, the applicant requested that the respondent provide her with "an inventory or listing of all my personal information held by NSWA connected or related to the clinical placement referred to in my section 14 request." 16. 14 September 2023, Mr Henderson sent the applicant a letter acknowledging receipt of her request for internal review and stating that he would be conducting it. He also advised her that Mr Kelly was no longer in the role of Senior Legal Officer and he asked that she direct future emails to the "privacy contact officer" address. A copy of this letter and its covering email is found at Tab 14 of Exhibit JH-1. 17. On 4 October 2023, He received a copy of an email from the applicant to the Ministry of Health, outlining the complaints raised in her second internal review request, and also outlining her ongoing complaints about the release of information sought in her first access application following the completing of the first internal review. A copy of this email, excluding its attachments, is found at Tab 15 of Exhibit JH-1. 18. On 14 November 2023, Mr Henderson issued a Notice of Decision in relation to the second internal review, and he attached two documents that he decided to release to her. These were unredacted copies of the file notes dated 2 February 2023 and 8 February 2023, which were previously withheld and released in redacted form with Mr Kelly's decision on 24 April 2023. Copies of the Notice of Decision, the covering email, and the documents released with the decision are found at Tab 16 of Exhibit JH-1. 19. In relation to the applicant's complaint about the respondent's "conduct related to public interest considerations", he conducted a fresh assessment of the public interest considerations for and against disclosure of the information that Mr Kelly had determined to withhold. In light of this assessment, he concluded that there was a public interest in favour of disclosing the two file notes and he decided to release them in full. In conducting that assessment, he did not consider whether a different decision should be made in relation to these emails, because he did not understand, from the terms of the internal review request, that she was seeking review of Mr Kelly's decision in relation to those documents. Having now reviewed the terms of that request, he saw that the applicant did state that she was seeking the release of the unredacted emails. However, given the volume of material provided by the applicant in relation to that request, and the extensive correspondence received from her in relation to privacy matters, he inadvertently overlooked that request at the time. 20. Mr Henderson stated that once it became clear to him that the applicant was pressing her request for access to unredacted versions of those email chains, he instructed the Crown Solicitor's Office to release those documents to her. 21. In relation to the applicant's complaint about the respondent's "conduct related to searches caused to be conducted", he found that Mr Kelly conducted reasonable searches for the information described in the second access request. He formed this view based on his review of the emails Mr Kelly sent to the persons referred to above, and the confirmation of emails in reply from those persons with documents falling within the request. Notwithstanding this finding, he recommended that further searches be conducted to identify whether the respondent held any additional information of the kind the applicant described in her internal review request, and specifically any photographs of documents other than the photographs of the evaluation form already released to the applicant. 22. In relation to the applicant's complaint about the respondent's "conduct related to information about personal information held by NSWA", he included a list of the documents that had been identified as falling within the second access request as "Annexure B" to the Notice of Decision. The applicant's correspondence to the respondent about her second access request and her second request for internal review, did not contain any indication that the request was urgent, that she required the information requested by a certain date, or that she required the information for the purposes of lodging an academic appeal with her university. 23. On 27 November 2023, pursuant to his recommendation that further searches be conducted for the information described by the applicant, he sent an email to Ashleigh Thorn to enquire whether any other photographs were taken of the applicant's documents at the time that the photographs of the evaluation form were taken. He considered that Ms Thorn was the most appropriate person to make this enquiry to, as he understood that she was the person who had taken the photographs of the evaluation form already released to the applicant. 24. On 10 December 2023, Ms Thorn replied to confirm that she did not see any other documents belonging to the applicant at the time that she took photographs of the evaluation form. A copy of this email exchange is found at Tab 17 of Exhibit JH-1. 25. On 11 December 2023, he notified the applicant that, as recommended in the second internal review decision, the respondent had undertaken further searches to identify whether it held any additional photographs of documents belonging to her, and that no additional photographs were held. A copy of that letter and its covering email is at found at Tab 18 of Exhibit JH-1. 26. On 12 December 2023, the applicant lodged the application for administrative review of the respondent's conduct in relation to her second access request: Matter 2023/00451201. On 9 February 2024, he instructed the Crown Solicitor's Office to send a letter to the applicant releasing unredacted versions of these emails. It was indicated to the applicant that these were being released to her as, in light of the findings of the second internal review, the respondent was no longer of the view that the information in those emails was subject to an overriding public interest against disclosure. A copy of that letter, enclosing copies of the unredacted emails, is found at Tab 19 of Exhibit JH-1. 27. Mr Henderson stated that prior to the release of these emails in full, the only redactions that had been applied to the emails were to the names and contact details of the respondent's and UTAS' staff. That is, the substance of the emails, containing comments directly relating to the applicant, had not been redacted in the versions previously released to her. 28. In May 2024, he contacted Paramedic Thorn by telephone to obtain further information about how the photographs were transferred from a mobile phone onto NSW Ambulance "IT systems" so that they could be annexed to her file note. I was informed by Paramedic Thorn that transfer of the photographs did occur by email between a phone and a computer. During the telephone call, Paramedic Thorn was unable to provide greater detail on whether the email was still available to her. 29. Mr Henderson stated that as a result of my employment with the respondent, he is generally aware that an "auto-archive" system is in place whereby emails outside of a certain period are automatically removed from Outlook access and stored in archive systems. He was not aware of whether this occurred, or whether email archives have been searched at this point in time. 30. Mr Henderson stated that he remain of the view expressed in the internal review decision, that the searches conducted by Mr Kelly, which had been supplemented by his searches, were reasonable in the circumstances. He stated that in his experience as A/Associate Director of Legal Services and in his previous role as Senior Solicitor for the respondent, it is standard procedure for searches for information to be conducted by contacting staff members who are likely to have access to the information sought, and asking those staff members to identify and provide that information (for example, by searching their email inboxes and outboxes). He was not aware of any matters that would suggest that the staff members contacted in this case - being Ms Thorn, Mr Corbett and Inspector Dwyer - would not have complied with Mr Kelly's and his requests to conduct relevant searches, or would not have provided an honest report on the results of those searches. The responses received from those staff members provided documents falling within the scope of the Applicant's access request. In his view, the fact that the staff members provided documents that were responsive to the access request supports the conclusion that it was reasonable for Mr Kelly to request that those staff members conduct searches for relevant documents, that they did in fact conduct reasonable searches to identify those documents, and that they did not withhold any of the documents that were found by those searches. 31. Mr Henderson stated that on 24 October 2023, the applicant lodged a third application for internal review of the respondent's conduct, relating to the manner in which it collected, used and disclosed the information that was the subject of her second access request: (a) the two file notes; and (b) the photographs of the evaluation form. 32. Specifically, the applicant stated that she was seeking review of the following conduct by the respondent: 1. "Conduct related to unauthorised/unlawful collection of my personal information", on the basis that the respondent's actions in taking photographs of her evaluation form contravened: 1. IPP 1 (s 8 of the PPIPA) because it did not collect this information for a "lawful purpose", and collected the information by "unlawful means"; and (ii) IPP 2 (s 9 of the PPIPA) because it did not collect this information directly from her; and 2. "Conduct related to awareness duties for collection of my personal information", on the basis that the respondent did not meet its "awareness obligations" in collecting the file notes and the photographs of the evaluation form. Mr Henderson stated that he understood that the Applicant was contending that the respondent had not taken reasonable steps to ensure that she was aware of the matters set out in IPP 3 (s 10 of the PPIPA) before or as soon as practicable after collecting the photographs and file notes. 1. "Conduct relating to the use of personal information not fit for purpose", on the basis that the respondent had breached IPP 9 (s 16 of the PPIPA) by "using" the information in the evaluation form and the file notes without taking reasonable steps to ensure that, having regard to the purpose for which that information was proposed to be used, the information was relevant, accurate, up to date, complete and not misleading. 2. "Conduct related to unlawful disclosure of personal information to a person/body", on the basis that the respondent had breached IPP 11 (s 18 of the PPIPA) by disclosing the information contained in the evaluation form and the first file note (dated 2 February 2023) to her university. 1. In the same request, the applicant also asked the respondent make amendments to the personal information contained in the evaluation form and the two file notes. Mr Henderson understood she was making this request under s 15 of the PPIPA, on the basis that the personal information in those documents was "misleading", "not accurate", and "not fit for purpose". A copy of the third internal review request, including her request to amend her personal information, and its covering email is at found at Tab 20 of Exhibit JH-1. 2. Also on 24 October 2023, the applicant sent another email attaching additional documents that she said were relevant to her third internal review request. A copy of that email and its attachments (excluding the reproduced copies of the second access request and her proof of ID) is found at Tab 21 of Exhibit JH-1. 3. On 26 October 2023, Mr Henderson wrote to the Applicant acknowledging receipt of this internal review request advised that he would be conducting the internal review. A copy of that letter and its covering email is found at Tab 22 of Exhibit JH-1. 4. On 13 November 2023, Mr Henderson received an email from the applicant indicating that she wished to withdraw her request for amendment of her personal information. A copy of that email is found at Tab 23 of Exhibit JH-1. 5. On 14 November 2023, Mr Henderson sent an email to the Applicant seeking clarification as to whether she wished to withdraw all of the requests for amendment of her personal information contained in her application dated 24 October 2023. A copy of that email is found at Tab 24 of Exhibit JH-1. 6. On 18 December 2023, the applicant confirmed that she wished to withdraw all of the requests to amend her personal information made on 24 October 2023. A copy of that email is found at Tab 25 of Exhibit JH-1. 7. On 22 December 2023, Mr Henderson provided a Notice of Decision in relation to the third internal review to the applicant. A copy of that decision and its covering email is found at Tab 26 of Exhibit JH-1. He eferred a number of times to the "UTAS Placement Handbook" that the University of Tasmania provides to paramedicine students completing a clinical placement. For the purposes of conducting his review, he obtained a "blank" copy of this handbook on request to Suzanne Avis, the Sydney Campus Lead for the UTAS School of Paramedicine. A copy of this document is found at Tab 27 to Exhibit JH-1. He noted that this version of the handbook was provided to the students who completed clinical placements with Ambulance Tasmania in December 2022 and January 2023 for the university unit "Emergency Ambulance Clinical Placement 3", which is the same unit that the applicant was completing during her placement with the respondent. He did not have a copy of the specific handbook that was provided to the applicant in relation to her placement, but as she was completing the same unit, he understood that the contents of that handbook would have been the same as the handbook he reviewed. 8. Mr Henderson found that: (1) It was apparent that the respondent collected the personal information contained in her evaluation form by taking photographs of that document; (2) The personal information contained in the evaluation form was reproduced in the file note recorded by Ms Thorn on 2 February 2023; (3) The respondent provided the file note and the photographs of the evaluation form to the University of Tasmania; and (4) This conduct did not contravene IPPs 1-3, 9 or 11 (in ss 8-10, 16 and 18 of the PPIPA), as: 1. Her personal information was collected directly from her, as she provided a copy of the evaluation form to Ms Thorn; 2. She was aware that the personal information in the evaluation form would be collected by the respondent, via Ms Thorn, because the "UTAS Placement Handbook" requires that the form must be provided to and completed jointly with a student's preceptor (the staff member responsible for supervising them on their placement); and 3. the personal information was collected for a lawful purpose, being to convey concerns about her progress on her clinical placement to her university, and to report difficulties that her preceptor had experienced in completing the evaluation form; and 4. She was aware, because of the information contained in the "UTAS Placement Handbook", that information of this kind (being information relating to her performance on the clinical placement) may be provided to her university, including for the purpose of raising any issues or concerns about the progress of her clinical placement. 1. Mr Henderson recommended that no further action be taken following the internal review. 2. In Ex B, Mr Henderson stated that on 4 June 2024, he located a copy of the Student Placement Agreement that is currently in place between the respondent and UTAS. As to the method used to transfer photographs from a mobile phone to the respondent's IT systems, he stated that n 5 June 2024, he had a further telephone conversation with Miss Thorn. She informed him that she had accessed her email archives to find the email she had sent from her mobile phone, attaching the photographs of the applicant's evaluation form. She then clarified that she took the photos on her personal iphone as she had noy yet been issued with a work phone and she was expected to us her personal phone for those purposes. She said that this email did not contain any text or information except for the photographs included n her file note and the words "Sent from my iphone". Oral evidence in chief 1. In his evidence in chief, Mr Henderson stated that he did not wish to add anything or change his statements. Cross -examination 1. The applicant's agent cross-examined Mr Henderson and the following exchanges occurred: Applicant's agent: I've got a couple of questions for you. Can I take you to your internal review decision of 14th November 2023, which is in bundle E of 2023 at page 33… You made a finding that the applicant's complaint is not established in regard to the contention that the respondent made a material mistake of fact when applying s 55 of the GIPA Act. This goes to the personal factors. In your decision, you make the decision that on the basis that you may find that the complaint was not established in relation to the applicant's internal review application of her actual motive. Give me the reason why you support that finding. Allchurch: Senior Member? So remember the Tribunal's not conducting a review of the internal review, it's conducting a review of the underlying conduct, this question is not relevant. Tribunal: Are we going down the same rabbit hole as you did with the previous witness? Applicant's agent: I'm not sure that I am, but could you direct me? Tribunal: I believe I've already given you substantial direction about this issue. I can't make you follow it. Applicant's agent: I was. I was just trying to test the proposition that... Tribunal: I am concerned with the conduct. Applicant's agent: I'm sorry, concerned with my conduct? Tribunal: No, the respondent's conduct, which has resulted in this application being made. If you can ask the witness something relevant you welcome to do so. If not, I will excuse him. Applicant's agent: Can I ask the question as to the findings he made in the internal review. Tribunal: You can ask questions about matters going to the conduct that you assert against the respondent. Applicant's agent: Well… Tribunal: The decision on internal review… never mind. I'm not going to repeat myself. Applicant's agent: The conduct which I go to is Mr Henderson's finding? Tribunal: No. The conduct you're going to is that you allege that there have been breaches of s 14 of the PPIPA. If you want to take the witness to any particular matters that you see regarding the alleged breaches of s 14, this is your opportunity to do so. Bearing in mind that I am not bound by these findings and the documents have been produced, your client has them, and I am now reviewing the conduct of the respondent. Applicant's agent: Sorry. So just to clarify for me.. Tribunal: No. I've clarified this enough. If this was a review of a decision under the GIPA Act it would be totally different, but it's not. Applicant's agent: But these provisions have been imported into this decision on s 14 of the PPIPA – the public interest test. Tribunal: The documents have been produced to your client as I think I have observed countless times. Now I am concerned with the conduct under s 14 of the PPIPA. I'm not concerned about the findings made by this witness or why he made them, because the documents were produced. Now can we please move on? Applicant's agent: Yes. Mr. Henderson, can I take you to paragraph 42 of your statement of the 9th May. Witness: I have that. Applicant's agent: So I mentioned paragraph 42. OK. So just below at 52, you said, "Once it became clear to me that the applicant was pressing her request for access to unredacted versions of those e-mail chains, I instructed the Crown Solicitor's office to release those documents to her". In terms of what you become aware when it was clear to you, yes, wouldn't it have been clear to you at the time that the applicant lodged her application for review with NCAT that she was expressing her desire to have those emails, given those propositions are stated in the application, and not at a later time. Witness: At the point in time that the decision of 14 November and events following, there are three separate applications on foot - at varying stages with various disputes about emails. It was my oversight that I did not realise that the focus of the 14 November decision wasn't just on the file notes, which was my focus of the decision. That was my oversight. The Crown Solicitor, who was representing at the time, pointed that out to me. I thought there was no issue with those emails and I didn't appreciate that they were part of that internal review application and those emails were released in full after that. Applicant's agent: But at the time that, I understand you inadvertently missed that that, but in between then and engaging the Crown solicitor, the applicant lodged a request with NCAT. Tribunal: Do you want to put to this witness when the application was launched? I doubt that's within his personal knowledge. Allchurch: Senior Member, in fairness, in paragraph 50 of Mr Henderson's statement, he does talk about these proceedings being commenced. Applicant's agent: That would have made you aware within a reasonable time after that that an application had been lodged. And that would have triggered,.. Tribunal: You can ask this witness questions, but you are putting your views to the witness and you are making submissions to the witness, right? You're not asking him questions. Applicant's agent: Can I ask why you did you provide the emails at the time you became aware that the application had been lodged with NCAT and not on 9th February? Witness: From my recollection, the application to NCAT referred to emails and that's been pointed out to me. I don't know, but I may have not known at the time, what those emails were in relation to which application, because there were multiple concurrent applications. But I do know I didn't take steps because I didn't realise those emails were part of that application. Applicant's agent: And that only came at a later time when the Crown Solicitor informed you? Witness: I believe so. I became aware at some point that the emails weren't made available in an unredacted form. Applicant's agent: Yes, thank you. Tribunal: And just to clarify, once you became aware that unredacted emails were sought, you produced them. Witness: Yes. Applicant's agent: They were produced the day before our case-conference on this matter. Tribunal: So I take it there's no dispute on that. Applicant's agent: I want to take you now to an e-mail you sent to Ashley Thorn on 27th November. It's in your exhibit JH1 at page 139. Witness: Yes, I have that. Applicant's agent: And I'd also like you to take you concurrently to the applicant's internal review application in the 2023 Bundle A at page 35. Tribunal: What's the relevance of this line of questioning? Applicant's agent: We're trying to establish whether Miss Thorn's search was constrained based on the information provided to the respondent in the internal review, and whether as part of Mr. Henderson's review, did he decide to do subsequent searches for (FTD's) personal information. But when we look at the e-mail that he sent, it seems to constrain the searches that are outlined in (FTD's) internal review application submissions. Tribunal: If it has any relevance at all it is a matter for submissions and not a matter for this witness and the documents speak for themselves. You've cross examined Miss Thorn to some to at some length on Friday. I don't recall this issue having been raised with her directly. Applicant's agent: It's not an issue for Miss Thorn, it's an issue that goes to the drafting of the e-mail by Jack Henderson. Tribunal: The document speaks for itself. You may make submissions on it in due course. Please move on. Applicant's agent: Mr. Henderson, did you have any discussions with Miss Thorn before you sent the e-mail to her on 27th November? Henderson: I don't believe I did. 1. Mr Allchurch did not seek to re-examine the witness and the Tribunal excused him from further attendance. Evidence/Possible evidence of the applicant 1. As the Tribunal ruled that the applicant had not filed any direct evidence that was relevant to the privacy dispute, and the applicant failed to take advantage of the leave given to her on 16 August 2024 to prepare, file and serve a statement of her evidence by 19 August 2024, the process of the respondent cross-examining her on 19 August 2024 became complicated. 2. The Tribunal ordered the applicant to file and serve a "final bundle of documents" that she contends are relevant to the current dispute under the PPIPA and she lodged this with the Tribunal on 26 August 2024. 3. The Tribunal notes that in this "final bundle", the applicant extracted information from the previous "red bundles – "Material in Reply"" that she had filed in both the 2023 and 2024 proceedings. These documents were tabulated as follows, and it was necessary to examine them to determine whether they did contain any evidence as opposed to contentions/submissions. Student placement contravention 1. Pages 18 to 23 contain submissions under the following headings: (1) Student placement agreement between NSW Ambulance and UTAS; (2) Agreement based on NSW Health Template; (3) The main legal framework and contractual document; (4) Evaluation, assessment and reporting of student performance on placement; (5) Performance of the respondent's assessment reporting obligations; (6) Applicant's (Student's) assessment reporting requirements; (7) Respondent's (Preceptor) assessment reporting requirements; and (8) Respondent's non-performance of assessment reporting requirements. 2. In relation to the (8), the applicant complained that in Miss Thorn's file note dated 2 February 2023, she purported that the assessment that she completed on 22 January 2023 was "not an honest account of applicant's assessment for the clinical placement": See para 100(a) at page 18. She also argued that "the Preceptor's omission to report in the Clinical Practice Summary (task 2) a purported "true and correct" account of her assessment of the applicant for the purposes of the clinical placement": see para 100(b) at page 18. She also alleged that there was ""a misrepresentation" to the applicant that the Clinical Practice Summary (task 2) completed by the preceptor on 22 January 202e was a "true and correct" account of her assessment of the applicant by finalising and signing that form".": see para 100(c) at page 18. Finally, at para 101, the applicant stated: The non-disclosure of "further feedback" and "alternative evaluation documentation" relates to the file note subsequently prepared on 2 February 2023 and attachments thereto which the preceptor purports was an "honest" account of the assessment of the applicant at the time of the conclusion of the clinical placement on 22 January 2023. Tribunal's ruling 1. The Tribunal's view is that these are submissions that are possibly relevant to either an administrative review of Miss Thorn's evaluation/assessment of the applicant or an allegation of a breach of a Student Placement Agreement between the respondent and UTAS. 2. However, during the hearing, Tribunal repeatedly ruled that it does not have jurisdiction to conduct a merits review of Miss Thorn's decision and/or to determine an alleged breach of contract under the guise of an alleged breach of the PPIPA. Accordingly, the purported evidence contained in pages 18 to 23 (inclusive) are not relevant to the current proceedings under the PPIPA. Applicant's request for access to assessments withheld by respondent 1. Under this heading, the applicant argued that there was an "oppressive use" of the public interest test by the respondent in the decision made by Mr Kelly on 24 April 2023, and she concluded as follows: 106. The applicant contends that the public interest test has no part to play where the parties to the Student Placement Agreement have entered into express legal relations to facilitate the respondent's obligations to undertake student placement reporting functions. Tribunal's ruling 1. During the hearing, the Tribunal repeatedly ruled that as the relevant information had previously been released to the applicant in full, and it was determining a dispute under the PPIPA, as opposed to the GIPA Act, it was only concerned with whether the respondent's conduct breached the PPIPA. 2. The Tribunal also ruled, on more than one occasion during the hearing, that the applicant's "contention" (or proposition) on this issue is not relevant to the dispute to be determined in the current proceedings. Reckoning time for "excessive delay" 1. At para 107 (page 24), the applicant stated: Should the Tribunal concur with the applicant's contentions it would be open for the Tribunal to find that the respondent's assessment report and further feedback (the Preceptor's file note dated 2 February 2023 and the alternative evaluation documentation attached to that file note) should have been released to the applicant no later than the earliest of the following most relevant time: (a) on or very soon after (given no public interest test applies) the time that this personal information came into the possession of Shaun Kelly as a result of the earlier searches conducted by Ashleigh Thorn, which based on internal email communications between Miss thorn and Mr Kelly was 6 April 2023; or (b) Shaun Kelly's notice of decision on 24 April 2023. In this regard, any reckoning of whether there was "excessive delay" in the applicant obtaining access to assessment reports and feedback (the Preceptor's file note dated 2 February 2023 and the alternative evaluation documentation attached to that file note) should have regard to this date. Tribunal's ruling 1. The Tribunal is satisfied that these paragraphs contain submissions and not direct evidence from the applicant. In any event, this Tribunal is not conducting an administrative review of Mr Kelly's decision dated 24 April 2023 under the terms of the GIPA Act and they are not relevant to issues in dispute in these proceedings. Personal factors & PICAD contravention 1. Under this Tab (from pages 26 to 33 (inclusive), the applicant continued her submissions regarding the alleged excessive delay. She also complained that the internal review decision made "questionable findings" of "complaint not established" and that there was "No support for respondent's reliance on personal factors". The applicant stated, relevantly: The premise of this ground of contravention 128. These criticisms included the respondent's insufficient action to take account of an earlier internal review completed by the Assistant NSW Crown Solicitor and its relevance to Shaun Kelly's notice of decision on 24 April 2023 subject to this internal review, which substance identified conduct representing insufficient performance of the respondent's obligation to monitor its continuing compliance with s 14 of the PPIP Act and to expedite an immediate revision of that notice of decision when it became reasonably foreseeable its reasons and findings were not justified (a main object of the applicant's application for internal review. Respondent ongoing obligation for compliance with s 14 of the PPIP Act 129. The applicant contends there is an ongoing obligation imposed on the respondent by the PPIP Act to remain in compliance with the Information Privacy Principles. 130. This obligation extends to circumstances where the respondent has received a request for access to personal information and completed a notice of decision in relation to a request. the respondent has a continuing obligation in these circumstances to ensure that, to the extent further information becomes available to it that may suggest it is reasonably foreseeable the respondent is not in compliance with s 14 of the PPIP Act in respect of an earlier notice of decision, then there is an obligation on it to investigate and to the extent necessary, remediate an earlier notice of decision to ensure continuing compliance with its obligations to be compliant with the Information Privacy Principles. 131. The applicant further contends that this continuing obligation on the respondent is not lessened or effected by any right of the applicant to lodge an application for internal review of that notice of decision that remains unexercised by the applicant at the time it becomes reasonably foreseeable to the respondent that there has been a contravention of s 14 of the PPIP Act. Tribunal's ruling 1. The Tribunal is satisfied that these pages contain submissions and not direct evidence from the applicant in relation to the alleged breaches of the PPIPA. 2. In any event, the Tribunal repeatedly ruled that these issues are relevant to the determination of an administrative review of Mr Kelly's decision under the GIPA Act, but they are not relevant to the determination of the current dispute under the PPIPA. "Assistant Crown Solicitor contravention" 1. This Tab set out two pages (34 and 35). 2. However, the Tribunal's view is that these pages do not contain direct evidence from the applicant. Reasonable searches contravention 1. Under the heading "The premise of this ground of contravention", the applicant stated: 138. The applicant had included a complaint in her application for internal review surrounding the conduct of aspects of searches conducted by the respondent that called into question the reasonableness of the searches, specifically those conducted by Ashleigh Thorn, who had been the Preceptor of the applicant during her clinical placement in December 2022/January 2023. Evidence or submissions? 1. The applicant alleges that "a forensic examination… of the photographs reproduced in the alternative evaluation released to her indicated that they had been taken and collected by use of a mobile phone (each photo shows the shadow of a person's hands holding the mobile phone in portrait orientation while taking each photograph)." See para 141 on page 36. She also stated: 143. The release of the alternative evaluation documentation meant the applicant was able to form a reasonable presumption of who, when and how the photographs came to be collected and held by the respondent. This has raised a presumption for the applicant that reasonable searches had not been conducted by Ashleigh Thorn based on a number of factors including: A. the unauthorised and non-transparent collection of the photographs; b. other personal information almost certainly held by Ashleigh Thorn and the respondent required to facilitate the transfer of photographs into the respondent's IT systems of record and from there caused to be reproduced in the alternative evaluation documentation collected and held by the respondent in those IT systems of record; and c. the prospect the photographs reproduced in the alternative evaluation documentation may only represent a sub-set of photographs taken of the Student Evaluation Handbook (including additional pages of the Clinical Practice Summary contained therein) and other hardcopies of personal information that accompanied the Student Handbook on the last day of the applicant's clinical placement. 144. Adding to the applicant's presumption that reasonable searches had not been conducted by Ashleigh Thorn was the realisation that the unauthorised and non-transparent collection of the photographs on 22 January 2023 had continued to be hidden from the applicant when later Ashleigh Thorn and her manager Ian Dwyer (Tuncurry Duty Operations Manager) subsequently emailed on 2 February 2023 the applicant's "alternative evaluation documentation" containing the photographs to the UTAS Coordinator without copying in or making the applicant aware of the correspondence. As assessment report information the respondent has an obligation to provide this to the applicant pursuant to its obligations under the Student Placement Agreement. 145. This meant that the applicant had continued to remain unaware that the photographs had been taken, collected and held by the respondent. 146. The UTAS Coordinator and subsequently her manager, the Director of the School of Paramedicine, with the knowledge of the Dean of the College of Health and Medicine (relevantly a signatory to the Student Placement Agreement) had also kept the alternative evaluation documentation hidden from the applicant when received by them and maintained this position through the course of the UTAS assessment, review and appeal period for the clinical placement, a period which extended into late April 2023. 147. Later, following an internal investigation by UTAS executive leadership, the UTAS Deputy Vice Chancellor of Education in a letter to the applicant on 9 May 2023, among a broader list of findings relating to the applicant's experience in this clinical placement, found that it had been procedurally unfair for the School of Paramedicine not to make feedback from the respondent (which included the alternative evaluation documentation) available to the applicant. 148. Given the demonstrated proclivity for Ashleigh Thorn and her manager to avoid the applicant becoming aware that the photographs had been taken, collected and held by the respondent, the applicant formed a reasonable presumption that Ashleigh Thorn may have had a motivation at the time of her searches not to identify any personal information known to her that would link her personally to the taking and collection of the photographs. That motivation may have been formed out of an expectation of an undesirable outcome that the disclosure of this personal information included the prospect of: a. the applicant becoming aware of the identity of the person who had taken photographs of her Student Handbook; and/or b. Shaun Kelly, officer coordinating the respondent's response to the request for access, becoming aware of the circumstances surrounding the collection of personal information and being obligated as part of his role as a privacy contact officer to undertake further enquiries of A. Thorn in regard to the circumstances surrounding the collection and holding of personal information. Tribunal's ruling 1. The Tribunal's view is that this section of the bundle does contain limited direct evidence from the applicant. However, it is clearly written in "the third person" and it does not set out what she alleges occurred on 22 January 2023 in her own words. Its evidentiary value is therefore diminished. 2. In the Tribunal's view, paras 145 and 146 contain direct evidence from the applicant, but that evidence is not relevant to the current dispute under the PPIPA. 3. The Tribunal considers that the remainder of the paragraphs extracted above are submissions that are based upon the applicant's speculation regarding Miss Thorn's motives and there is no sound basis in the evidence to find that this is accurate. Evidence or submissions? 1. The applicant continued, relevantly: 154. Sometime between 27 November and 10 December 2023, the respondent conducted further searches for information pursuant to the documentation in the internal review. 155. Later on the 11 December 2023 the respondent sent a letter to the applicant to confirm that as a result of additional searches conducted pursuant this recommendation, it confirmed no additional photographs were held y the respondent. 1. The Tribunal is satisfied that these paragraphs contain direct evidence, although there is no dispute before regarding the matters discussed therein. Evidence or submissions? 1. The applicant then referred to the summons to produce documents that she issued in this matter and she stated, relevantly: 157. In response to that summons on the 19 June 2023 the respondent provided a copy of an email sent from the mobile phone of Ashleigh Thorn via her personal email address to her NSW Ambulance email address on 1 February 2023, which included attachments consisting of five photographs of the applicant's handwritten Clinical Practice Summary (the same photographs that were ultimately later reproduced in the "alternative evaluation documentation" that was attached to Ashleigh Thorn's file note dated 2 February 2023. 1. The applicant referred to the evidence of Jack Henderson filed 11 June 2024, in which he confirmed that he had a telephone discussion with Miss Thorn on 5 June 2024, where she indicated to him: Ms Thorn clarified that she had taken the photographs on her personal iPhone, as at that point NSW Ambulance had not provided her with a work phone and she was expected to use her personal phone for work purposes. 1. On that basis, the applicant "contends" that Miss Thorn's iPhone became "an extension to the respondent's main IT systems of record, and becomes an integral component of its IT systems of record". 2. Therefore, the applicant argued that the information was first collected by the respondent on 22 January 2023 and that the transfer of those images by email on 2 February 2023 was "merely an internal transfer and further reproduction of those images." 3. The applicant stated that the Registrar gave access to documents produced by Miss Thorn under the summons on 12 July 2024 and that she attended the registry on 17 July 2024 and obtained copies of them. She alleged that the photographs indicated that Miss Thorn photographed seven pages of her Clinical Practice Summary evaluation forms on 2 January 2023 and on 1 February 2023, she made a decision to only send a subset of five pages to her NSW Ambulance email address and the respondent's IT systems of record. 4. Ultimately, the applicant stated, relevantly: Reckoning time for excessive delay 168. Should the Tribunal concur with the applicant's contentions herein it would be open for the Tribunal to find that the applicant's personal information produced under summons on 19 June 2024 and 17 July 2024 should, if reasonable searches had been conducted, have been released to the applicant at the time of Shaun Kelly's notice of decision on 24 April 2023. In this regard any reckoning of whether there was "excessive delay" in the applicant obtaining access to this personal information should have regard to these dates. Tribunal's ruling 1. The tribunal's view is that the paragraphs extracted immediately above in this decision contain limited direct evidence from the applicant, but that the "Submissions on grounds for excessive delay" (set out from paras 169 to 182 (inclusive) are clearly submissions. Cross-examination of the applicant 1. The respondent required the applicant to attend for the purposes of cross-examination and she was called and took an affirmation. The Tribunal asked her to state her full name, date of birth and address, which she did. She stated that she was currently working at a hospital "in administration." 2. The applicant told Mr Allchurch that she undertook a Bachelor of Paramedic Practice at UTAS and as part of that she was required to undertake various clinical placements with the respondent. She also agreed that a clinical placement is a form of education in a healthcare-related degree where a student attends a Public Health Organization such as the hospital or in this case, the respondent, to get practical experience. 3. However, the applicant's agent interjected and he stated, "I understood that I was doing the examination in chief of the applicant. Is that not the procedure?" 4. This resulted in the following exchange: Tribunal: You can ask, since then she's been required for cross-examination and you've filed no evidence, she will be questioned by the respondent, and then you can put matters to her by way of re-examination. Applicant's agent: But no examination in chief. Tribunal: Re-examination in this context is the same. Applicant's agent: OK. Thank you. Witness: That's right. Tribunal: If you had filed evidence. The situation would be different. 1. Mr Allchurch noted that these proceedings relate to FTD's placement at Tuncurry Station and that on reviewing the materials filed, it was unclear whether this was her third or fourth clinical placement. He asked how many clinical placements she had undertaken before the placement at Tuncurry? She replied that she had undertaken three previous clinical placements, so this was her fourth placement. 2. The cross-examination continued as follows: Allchurch: Can you go to Bundle D in the 2024 proceedings at page 37. Do you see where it says "the clinical placement"? So this is a document you file which is the applicable Clinical Placement Handbook, is that correct? Do you see where it says clinical? Placement 3. Witness: Yes. Allchurch: Can you explain why this refers to clinical placement 3 if your placement at Tuncurry was your 4th placement? Witness: So that's because this was a repeat of my previous unit. I had done 3 placements and the last placement that I did, I had a bit of a just a poor experience which involved just having a preceptor at the time didn't really want a student. And that as a result, that kind of manifested a lot of like problems as a student. And yeah, those problems came in the form of her not wanting a student there, and me actually having an experience on that placement which was a neonate resuscitation, and that experience led to like numerous issues. I had never like dealt with something as serious as that before, and it left me quite traumatized. Tribunal: Sorry, can I just stop you there. Your answer that you were required to repeat placement #3 and that's why this document refers to placement #3, not placement #4. Witness: OK. Tribunal: I am just stopping it there because you're giving information that is highly sensitive and it is not relevant to what I need to hear. Allchurch: Alright, thank you for clarifying that. This was your 4th placement. It was a repeat of a previous placement as it was your 4th placement. You must have been familiar with how placements work at this point. Is that correct? Witness: Yeah, that's correct. Allchurch: And that means you're familiar with the policies and procedures for getting feedback from preceptors, right? Witness: Yes. Allchurch: I'd like to take you to bundle B in the 2024 proceedings at page 31. So this is a University of Tasmania announcement about your last clinical placement in December 2022, for January 2023, is that correct? Witness: Yes, yes. Allchurch: And do you read this announcement for your placement at Tuncurry Ambulance Station? Witness: Yes, I did. Allchurch: At the bottom it is signed Susie and Laura. I gather that. Susie is Suzanne Avis, the unit coordinator at UTAS. Is that correct? Witness: Correct. That's correct. Allchurch: And is Laura someone else at UTAS? Witness: She's the other UTAS coordinator in Tasmania. Allchurch: Thank you. Can you please read .1 of this to yourself? Tribunal: It is somewhat hard to see. Allchurch: I'm unable to zoom in on my version, but I will read it out. Point 1 says: You have a clinical placement handbook which you will need to print and take. It contains both assessment task 1 and assessment task 2. It is best if you complete these in handwriting. It is mandatory for you to have your preceptor complete and sign (not electronically) your handbook. You all know this can be a potential problem. Don't leave your book with your preceptor. At the end of the placement. If you are having difficulties having this completed, please give me a call and we can work out the best approach. Please, please don't leave this until the last shift. It is likely that many of you will have more than one preceptor/mentor. Tribunal: Thank you. Allchurch: So where it says it's mandatory for you to have your preceptor complete and sign your handbook, your notes can be a potential problem. Now, as I understand the problem being referred to there is people leaving their handbooks with their preceptors and failing to take a copy with them, which would make it difficult for them to submit their assessment as required. Is this the problem that's being referred to? Witness: It's referring to pretty much that the student has possession of the handbook the entire duration of their placement, and when they need to collaborate with the preceptor to sit down with the preceptor, that they do it together. And then it's the student's responsibility to take away the placement handbook and submit that into the assessment portal. Allchurch: Right. Because if they leave the handbook behind, then they are not going to be able to submit the assessment. Witness: Yeah, and yeah, after all, it is a like assessment task, yeah. Allchurch: Right. And then further down it says, please, please don't leave it until the last shift. To me it sounds like there have been problems with students leaving it the last shift to complete their evaluation forms and give them to their preceptors to complete. And that that's what your unit coordinators were trying to prevent. Were you aware of that being a problem in previous placements for people in your University cohort? Witness: I think overall I was aware that to not like leave your placement handbook as it's obviously assessment tasks like to the last day and the last minute so... Allchurch: And it's part of the problem with leaving it to the last minute that the preceptors don't have enough time to fill out the evaluation form. Witness: Yeah. Allchurch: Going down to .3 of this document, I'll read it out again. It says: Please give your preceptor my number and e-mail address so that they can contact me if they need to. There is a section in your handbook for preceptors. It would be ideal if they could read this on your first shift. Now, do you accept that this suggests that the preceptor and the unit coordinator, Susie, might communicate about the students? Witness: Yes. Allchurch: Right. Now I'd now like to go to 2024 bundle D at Tab 4. I'll note that the same document appears at TAB 27 of exhibit JH1 to the statement of Jack Henderson, but I've already taken you to this document and you're familiar with this before your placement at Tuncurry? Witness: Yes, correct. Allchurch: Can you read what it says under the heading "Clinical Placement Log" and "Clinical Practice Summary tasks 1 and 2", and in particular the first sentence in red. Witness: "The students must ensure they discuss the completion of the Clinical Practice Summary with their preceptor at the beginning of the clinical placement." Allchurch: Yes, right. Thank you. And if we stay in this document and turn to page 40, you see that this is a part of the document that's headed "Important Information for Clinical Preceptors". So I gather this is the part of the handbook that's to be provided to preceptors. Witness: Yes, that's correct. Allchurch: If we go on to page 42, which is still part of the same section of the document, do you see what the second bullet point on that checklist says: Become familiar with the forms that you and the student will need to complete clinical practice, summary report forms and clinical practice records at the beginning of the placement? Witness: Yep. Allchurch: So again, this is encouraging preceptors to become familiar with the evaluation form at the beginning of the clinical placement, right? And at the bottom of that page, it says "Assessment Task 2" of the "Clinical Practice Summary Report" should be completed by both the student and clinical preceptor and that last bit is bold and in red and underlined. Witness: Yes, that's right. Allchurch: OK. And if we go to page 43, under task 2, it says, "Clinical Practice Summary Report student and Preceptor to complete." Is that right? Witness: Yep. Allchurch: So this "Clinical Practice Summary Report" is what I will call the evaluation form and it was a document that was jointly authored by the student, and the preceptor. Is that right? Witness: Yes. Allchurch: And you see again under task 2, it says: "It's expected that the student will demonstrate every learning outcome during placement. This report is best filled out throughout the student's placement, not at the end." Witness: Yep. Allchurch: And I mean, this is all consistent with what we've been talking about, that it's a process that should be started early, not left to the last day. And just below that it says: If preceptors have any problems completing this report or any concerns with the student's progress towards meeting these outcomes, please contact the unit coordinator." It then provides the details for Suzanne Avis. So it's clear from that document if there was any issue about the evaluation form or with the student's progress more generally, the preceptor could contact UTAS. Witness: Yeah, right. Yes, that's correct. Allchurch: Let's proceed to page 58 of that document. So this is the evaluation form itself, and again, at the top, it says, "To be completed by the student and preceptor." Witness: Yeah, that's correct. Allchurch: And I think we've heard some evidence from Miss Thorn about this on Friday. But the way that this form works is you fill in your section first, you sort of identify the learning outcome and the case scenario that you want to reflect on, and then you give that to your preceptor, who reviews that part of it and provides comments/feedback. Is that correct? Witness: Yes. Allchurch: So Miss Thorn couldn't do anything for her sections of the form until after you gave it to her, is that correct? Witness: Well, how I completed the form with Miss Thorn was to pretty much… Tribunal: Sorry, could you just answer the question. It was that Miss Thorn couldn't do anything on this until you gave it to her. Do you agree with that or not? Witness: Yeah. Allchurch: OK. Thank you. And so would you agree that the evaluation form is a document that is jointly authored by the student and the preceptor? Witness: Yes. Allchurch: Yes, thank you. And indeed, both the preceptor and student are required to sign the evaluation form, aren't they? Witness: Yeah, that's right. Allchurch: Now, do you accept that when a student and a supervisor complete an evaluation form together, it may be appropriate both for both of them to retain copies of it? Witness: No. Tribunal: Why not? I need an answer to this. Well, if you're both signing the document, why is it not reasonable for both of you to have a copy of it? Witness: Just given the fact that the University Instructions never require Ambulance to have a copy of the Placement Handbook and like it's an assessment task that's for the University to grade, to pass the degree. Tribunal: That document you were taken to earlier says that the preceptor should be shown the handbook at an early stage. Witness: Yes, that's correct. Tribunal: When did you first show it to Miss Thorn? Witness: I showed it to her on the first day in the morning of my first shift on my placement. Tribunal: I just don't understand your answer about why you say it's not reasonable for the preceptor to retain a copy of the document that she signed. Witness: It's just that that's never been like practice with my previous placements. Tribunal: It's not reasonable for her to have a copy of a document that bears her signature? Witness: Maybe if she had asked me and notified me. Tribunal: Well, no, I'm not asking you about that. I'm asking you why you say it's not reasonable for the two parties who signed this document to each retain a copy of it. Witness: And just given that it's an assessment task for the University for the purpose of grading… Tribunal: To which she was required to be a signatory, so why is it not reasonable for her to keep a copy of it. Is not part of the assessment task her information? Witness: My response to that is just it's for the students purpose to... Tribunal: Your response is non-responsive. Is not part of this information in this particular document information input by the preceptor? Witness: I mean it is information input from the preceptor, yes. Tribunal: So why is it not reasonable for the preceptor to retain a copy of it? Witness: That's not in my University Instructions that that's what preceptors do. My University coordinator put in… Tribunal: that is not the question I'm asking you. If you signed a document that contained your information and provided it to someone for legal purposes, would you not want to keep a copy of that document so you'd have a record of it? Witness: Yeah, I would.. Tribunal: Why is it unreasonable for the preceptor in this matter to retain a copy of the information that she input? Witness: Well, to be honest, I think she should have made me aware if she wanted to do that. Tribunal: Again, non-responsive. OK. Allchurch: One reason why a preceptor might want to retain a copy of the completed evaluation form is to prevent a student from changing their evaluation form after it's been completed to prevent academic fraud. Do you accept that? Witness: Yeah. Allchurch: Yes. Do you still have bundle B from the 2024 proceedings? Witness: Yes. Allchurch: Would you go to page 29 of that bundle please… So now this is an e-mail chain between you and Suzanne Avis about a previous placement you completed in NSW Ambulance isn't it? Witness: Yes. Allchurch: And in this e-mail we see that in a previous placement you had not complied with UTAS' policies regarding the completion of your evaluation form, because you had not got your preceptor to sign a hard copy. Is that correct? Witness: Yeah, that's correct. Allchurch: In fact, you had initialled the document on her behalf and submitted it without her knowledge. Do you accept that? Witness: No, I do not. Allchurch: Right. Do you see the first part of the of the first e-mail on this chain from Suzanne Avis? Witness: Yes. Allchurch: It says, "I've just received an e-mail from your preceptor, Lyndal Casey, for your CA-208 placement, letting me know that they have not yet signed off on your placement handbook, yet you have a signed copy uploaded to Milo with preserved comments." I put it to you that you did initial and submit it without her knowledge. Witness: No, that wasn't the case. Allchurch: Do you think the document speaks for itself? Witness: I mean I can elaborate but… Tribunal: The document speaks for itself. Allchurch: And, further down, in your response to that, you provide an explanation for what has occurred. And I think this is the placement you were telling us about earlier, where you've had some difficulties with your supervisor? Witness: Yeah, that's correct. Allchurch: You say in the second last paragraph, almost at the bottom of the page, "I didn't want her to change the comments, she did say because of what happened". IS that correct? Witness: Wait, sorry, can you please repeat that? Allchurch: So the last sentence of the second last paragraph is, "I didn't want her to change the comments. She did say because of what had happened. What happened." Do you see that? Witness: Uh. Yep. Allchurch: And so the reason that you submitted the document in the way you did was because you're worried that if you provided the document back to Miss Casey, you might receive negative feedback. Is that correct? Witness: Yes, I was. Yeah. Allchurch: Now, do you accept that it's precisely this sort of situation which would justify a preceptor retaining a copy of a completed evaluation form to ensure the integrity of the academic process? Witness: Given that… Tribunal: It's a yes or no question. Witness: I think yes, only with the permission and awareness that you're going to do that to the student in the first place. Allchurch: You think it would require the student's permission? Witness: Yes, I do. Yeah. Allchurch: So in circumstances where a preceptor is concerned about the integrity of the academic process and the risk posed by the student, you think that they should still nevertheless have the student's permission? Witness: Yes, and have, like the University involved in that conversation, like overall and then that be obviously communicated to the student. Allchurch: OK. If that's your evidence. Now I'd like to ask you some questions about your evaluation with Miss Thorn. When did you give Miss Thorn your evaluation form (not the handbook) to complete? Witness: I gave her the evaluation form, well the first day I showed it to her. Do you want me to… Allchurch: The version of the evaluation form in which you had filled out your comments so that she could complete her comments. Witness: OK. Yeah, that was given to her on the last day of my placement. Allchurch: Last. And do you remember how long was left in either of your shifts when you gave it to her? Witness: That day was the quietest day that we had on my placement. It was a 12 hour shift that day. We only had one case at the local police station down the road and the other 11 hours we spent just trying to do things at the Station. That's why I was doing one of the ambulance vehicle checks. Allchurch: But what time in that 12 hour shift did you give her the form, if you recall? Witness: Sometime in the morning. The shift started at 6:45 AM and ended at 6:45 PM. Allchurch: And we've gone through policy documents which make clear that students should not leave their evaluation form until the last day. We've gone through the evaluation form itself and you've accepted that the preceptor can't complete their sections until after the student completes their sections. Now, having regard to all of that, do you accept you should have given Miss Thorn the evaluation form to complete sooner? Witness: Given just the learning outcomes in the evaluation form, I hadn't had a chance to like to address the learning outcomes. You have to be presented with a case that really matches it, and I hadn't. I think at that point in time experienced a case that exposed me to answering that specific learning. I can't answer if I couldn't complete it, I'd just have to wait until I did attend the case that met that learning criteria. Allchurch: You've completed some of the learning outcomes. Witness: Yeah. Allchurch: Had you given that to Miss Thorn partially with those learning outcomes completed and asked for her for feedback on those learning outcomes? Witness: I could have, but I think I just wanted to sit down with her and complete everything like all at once. Allchurch: Even in light of all of the policies which say, don't leave until the last day. Witness: I guess so, yeah. Allchurch: Right. So do you accept that perhaps you had good reasons for leaving it to the last day, but that Miss Thorn may not have had enough time to think carefully about your evaluation form and to give her considered if views about your performance? Witness: Well, just given that the last day was a 12 hour shift where we only attended one case that day, we had another 11 hours spent to complete that form. So I think she did have enough time. And when you take on that preceptor role for a student, it's like expected that it might dig into your own time in completing forms at home. Allchurch: I mean, that's not a matter that was put to Miss Thorn. Tribunal: No, it wasn't. I am disallowing that. Allchurch: OK. Well look, I'll put the question and I'll make a submission in due course. Tribunal: There's no evidence before me as to why this could not have been filled in and completed earlier. Allchurch: And so you say that you sat with Miss Thorn while she completed the form? Witness: Yes. Allchurch: Do you accept that, Miss Thorn, without saying that you intended to put pressure on her, do you accept that she may have felt pressured to complete the evaluation form in a certain way, given that you only gave it to her on the last day and that you're watching over her shoulder while she completed it? Witness: No, I don't accept that. Tribunal: Can I ask a question please? The preceding days of the placement can you describe those? Were they busy? Witness: We were having probably like 5 to 6 cases a day, so fairly average. Tribunal: That is a fairly heavy workload for a student, and a paramedic, is it not? Witness: Yes, it is. However, compared to my metropolitan placements.. Tribunal: I'm not asking you about your metropolitan placements. We're talking about your placement with Miss Thorn. Allchurch: Miss Thorn gave evidence the other day, and I'm putting this to you as a matter of fairness, that given the workload in the preceding time before the last day of the placement, she felt that she needed more time to reflect on what skills you had demonstrated in order to properly complete the form. It's not simply a matter of sitting it down, having instant recollection and filling in a document. What do you say about that? Witness: I'm sorry, I'm still a bit like confused on that question. Tribunal: Well, you've said that you believe that Miss Thorn had adequate time to complete the assessment form because you gave it to her early on the last day and you basically had 11 hours available where she could have done it. I'm putting to you that you have agreed with me that the workload in the time leading up to the final day was heavy. There are a lot of things to consider, and with the number of cases involved and the issues involved in a paramedic attending cases, it's not simply a matter of sitting down and pressing buttons on a computer to complete an evaluation form. Do you agree with that or not? Witness: Yeah. Allchurch: OK, thank you. And perhaps at the time when you gave Miss Thorn the form, you didn't know that you were only going to have 1 call that day, did you? Because calls could come in at any time. Witness: Yeah, they could come in at any time. So, you don't know, obviously know how busy the day's gonna be. Allchurch: Yes, thank you. I've taken you through parts of the documents which say that they may make contact the University of Tasmania to raise concerns about student performance and evaluation. In anything that that we've read today, does it say that a preceptor has to ask the student's permission before they contact the unit coordinator? Witness: No, no. Allchurch: And in any of those places does it say at the preceptor can't contact the unit coordinator if they have questions or concerns after the completion of the placement? Witness: No, no. Allchurch: So you're aware when you started your placement and you would accept it, now that a preceptor could contact the unit coordinator with concerns about a student's performance without seeking their permission and that the preceptor could do so after the completion of the placement, if those concerns arose after the completion of the placement? Witness: Yes, I understand that. Yeah. Allchurch: And do you accept that if a preceptor has concerns about student performance, they might raise that with other people at NSW Ambulance? Witness: Yes. Allchurch: Including the Duty Operations Manager. Witness: Yes. Yes. Allchurch: indeed, that might be an appropriate course because the student's performance on a clinical placement is an important part of their education, and giving negative feedback about their student is a serious thing to do. Witness: Yes. Allchurch: So you must then accept that if a preceptor has concerns and raises those concerns with the Duty Operations Manager, the Duty Operations Manager can then raise those concerns with the Unit Coordinator. Witness: Yes, I understand that. But there's also like other early intervention processes that I would have expected as a student to be undertaken. Just like open communication about any concerns. Allchurch: Yes, no, I accept all that, but this Tribunal is not here to consider the merits of your placement. It's here to consider whether there's been a breach of the privacy legislation in the manner in which you are alleging. So it's not considering the manner in which you were evaluated. Re-examination of the applicant 1. The Tribunal instructed the applicant's agent that he could ask the applicant questions arising out of her oral evidence, but that this was the full extent of the leave given to him. The following exchange then occurred: Applicant's agent: When you say that, is that the answers to the questions she's just given? Tribunal: Yes. Applicant's agent: In the document that the Crown Solicitor just read out to you the... Tribunal: If your question was going to be whether or not this says something that's not there, the document speaks for itself and I will read it for myself. Applicant's agent: I'm trying to read it Member but it's very difficult. Tribunal: Well, this is in your case, this is the evidence that you filed. Applicant's agent: Just bear with me for a sec, it says in the first paragraph, "Don't leave your..." Tribunal: The first paragraph has already been read onto the record and the applicant agreed that this is what it said. Applicant's agent: Yes, yes, we all agree. It says don't leave your book with your preceptor at the end of the placement. And I understand that that's so you're physically taking away a hard copy document. Is there anything in your instructions in the Student Placement handbook that you've got or the notices that you receive on that system that I've read, that would suggest that you are to provide a copy to the person? Witness: Doesn't suggest that anywhere to provide a copy to the preceptor or anyone else in my placement. Tribunal: OK, the issue is whether or not it was reasonable for the preceptor to retain a copy of the document, into which she inserted information and added her signature. It is not a question what your daughter was required to do or was not required to do with that form once it was completed. That is not the issue here. Applicant's agent: Is that the usual practice? Tribunal: The question is, how would (FTD) know the usual practice upon completion of clinical placements? Applicant's agent: I'm asking in her in in her experience is it her usual practice that that occurs? Tribunal: How would she possibly know that? Applicant's agent: Because she's done three placements before this one, so I'm asking... Tribunal: And how is that relevant to the issue? Applicant's agent: Because it may suggest that it may not be reasonable that preceptors take copies. Tribunal: Then you can make a submission about that at the end of the day, but that is the evidence that's before me. And you've heard my views on it because I asked questions about it. Applicant's agent t: Can I ask that the applicant's experience of her previous placements and what happened? Tribunal: How is it relevant to this dispute? Applicant's agent: Because I'm trying to establish whether it's reasonable that that occurs. Tribunal: And you can make then you can make a submission on that. My preliminary view as a lawyer of X number of years' experience is that it is perfectly reasonable for someone who has put their signature information in a document to retain a copy of it. Now, you may make a submission if you disagree with that. That is a matter for submissions, not for re-examination. Applicant's agent: Just stay with me, Senior Member. Tribunal: You know, this could have all been outlined in a properly prepared case, but no. We're not doing it through the back door. Applicant's agent: Can I take us to maybe in terms of this question on the reasonableness, can I take us to the Student Placement Agreement that sets out the rights and obligations of each party. Tribunal: You can take her to the evaluation form. I'm not here to assess the merits or whether there's been a breach of an agreement between the student, the University or the Ambulance Service. Applicant's agent: What I'm trying to do, is to suggest that the Agreement includes a disclosure cause that only goes one way and that's from the University. Tribunal: …, you may ask (FTD) questions about the evaluation form if you so want. As to the case that's set out on page 33, I'd be very interested to know how soon before the end of the placement that case was, since no details have been provided. Applicant's agent: Sorry. What? What? What? What was that? Sorry. Tribunal: Page 33. The evaluation form I believe it's in your Bundle B at page at the bottom of page 33. Applicant's agent: Sorry, which Bundle? Tribunal: I seem to recall evidence being given a few minutes ago that this information could not have been input earlier because this particular case hadn't been identified or words to that effect. There's no information in this as to when that case was completed. I would be helped by that given the evidence regarding when all this was done. Perhaps I'll just ask the question myself. The evaluation form that you completed which is at page 33 of bundle B. Witness: Yes. Tribunal: It Refers to, I'll read it out: "A case where I displayed leading the care of the patient was when my preceptor and I attended a 60 year old, 68 year old female…" When was that case? Witness: That case would have been towards the latter end of my placement. Tribunal: Would have been or you have no recollection? Witness: No, it was. I do have recollection of this case. Tribunal: When you say before, do you mean in the week before, the day before, the afternoon before? Witness: Before what? Sorry. Tribunal: When was the case? Witness: This case would have been in my last week of the placement. Tribunal: Is there any reason why you could not have completed this earlier in your last week after this case happened? Witness: Probably because I was just busy with work late. You know, this case didn't happen until the very last week. Tribunal: But you could have you filled this out after anytime in that last week after that case happened. Witness: Ohh yeah. Yeah. OK. Applicant's agent: Was there any earlier time that you could have for that particular learning outcome? Was there an earlier case, or did you have to wait until a relevant case that matched that learning outcome arose? Witness: Just given that the learning outcome is about leadership and confidence in the delivery of out of hospital care, obviously when you go to a placement, you start off really observing as a student and as time goes on, you get to do more skills and the paramedics put more trust in the student to be able to start leading the patient care and obviously at the start of the place where I didn't have that opportunity, I'm also observing and doing like vital signs and really easy skills and this this. Here I led this case and I did everything that I said in this document, so I had to wait until a case like this obviously arose later in my placement because I hadn't been given that opportunity as of before then. Tribunal: And you said this happened in the last week of your placement? Witness: Yes. Tribunal: And I put to you that you could have completed it earlier than on the last day of your placement and. You said yes. That's what you told me a couple of minutes ago. Witness: Yes. Applicant's agent: Can't be the cases aren't that sometimes. What you do in your case is to. Not fill in the student section. Early given that you might, there might be a… Tribunal: Please… you're leading the witness. Applicant's agent: I'm not. Tribunal: And I'm not going to allow it. Applicant's agent: Look there are circumstances where you don't want to complete this document until later because you're waiting for a better case to come that might demonstrate that learning outcome. Tribunal: That's leading and that's not in evidence, because no evidence has been filed and I'm not going to allow you to lead the witness. The fact is that she's conceded that she could have done it earlier and she didn't do it earlier. What flows from that? I don't know. Is there anything else arising out of her evidence to the Crown Solicitor that you wish to query. Can we get on to it please? Applicant's agent: The proposition was put to you by the Crown Solicitor that you forged the signature of your previous preceptor. Allchurch: That's not the proposition. Tribunal: That's not the proposition that was put to her. Well, if you weren't listening, I'm not going to assist. I am not allowing you to put it. Applicant's agent: What's the problem? Tribunal: OK. The document the document indicates that the issue was raised with the applicant by the University that a form had been submitted without the signature of the preceptor. The applicant denied it. Applicant's agent: That is fine. Tribunal: The document speaks for itself. It's not relevant to the review I am performing. Can we move on, please? What happened in a previous placement is not my concern. I would think that you would be reluctant to have this information put on the public record. Applicant's agent: Well, but it it's been put on the public record by the Crown Solicitor. Tribunal: Subject to redaction under s 64 of the NCAT Act. Now, can we please move on to something that is relevant? I mean, you filed the document in the proceedings. That's how it gets onto the public record. You filed it. Allchurch: Just for completeness, I'll note that there's an anonymisation order in place. Tribunal: That's right. But if there were concerns about its contents, it shouldn't have been filed. But it was filed as evidence. Applicant's agent: (FTD), when you complete the student's section, does that provide your preceptor with all she needs to know about the case to be able to answer her section of it? Tribunal: I don't know what you're trying to put to the witness, but it sounds like it's leading to me. Applicant's agent: What I'm trying to say is Miss Thorn gave evidence that she didn't have time to complete her section of the form on the day it was submitted to her by (FTD) and the proposition is that (FTD) has done most of the work by putting it in front of her. The process is that she brings that particular learning outcome and that the only thing that was required for Miss Thorn to do was to recollect that case and provide a couple of comments. Tribunal: That is a matter for submissions, not evidence. You're stuck with the evidence of Miss Thorn on the process that's involved in the evaluation. That has already been explored at significant length by this Tribunal. You may make a submission about that if you so wish, but it does not arise out of questioning by the Crown Solicitor today. Applicant's agent: Thank you. The memo the witness provided evidence about early intervention procedures. Can I go to that issue? Tribunal: How is it relevant to the privacy dispute? Applicant's agent: We believe… Tribunal: I am not here to conduct a merits assessment of the evaluation process. We established that on Friday. Applicant's agent: Wait. Our allegations in this case… Tribunal: You may believe that the evaluation process was either unfair or unreasonable. That is not a matter for me. Applicant's agent: The allegations our case go to s 16 and the use of Miss Thorn's file note. As to whether it's relevant, we would like to make the proposition that… Tribunal: Well, you can make the proposition. Do you understand that a proposition is a submission? You can put whatever propositions you want in submissions. They are not a matter arising out of the Crown Solicitor's questioning today. Can we move on, please? Applicant's agent: Can I can I ask the witness whether she experienced any early intervention in her in her… Tribunal: No, it's not relevant. The issue is whether or not it was reasonable for Miss Thorn to have a copy of this document and to complete her evaluation when she did. And that, as I understand it, is the central point to your argument about use. That is the case the Crown Solicitor is here to meet. That is the case I'm here to determine. Can we please move on to something arising from the Crown Solicitor's questioning of the applicant today? 1. The Tribunal then excused the witness. Evidence of Mike Richer 1. Mr Richer provided a statement dated 29 May 2024, which was admitted into evidence and marked EX C. He was not required to attend for cross-examination. 2. Mr Richer stated that he is the Associate Director of Clinical Education for the respondent. He provided extensive detail regarding the clinical placement program and the contractual framework in which it operates. Much of his evidence on these matters relate to issues that are beyond this Tribunal's jurisdiction in relation to the current dispute under the PPIPA. However, he stated that it is the role of the Clinical Placement Administrator, Mr Michael Corbett, to review and approve applications for clinical placements via ClinConnect. Once the application is approved, a student will be automatically matched to an Ambulance Station and Mr Corbett will then provide a list of students who will be placed at each station to the ambulance deployment teams located in each operational sector and they then determine each student's roster and the preceptor/s that they will be assigned to. He stated that before a student's clinical placement begins, most information about the student and the placement is shared between the respondent and the student's university via ClinConnect. In addition to using that portal, Mr Corbett will also communicate with universities by email and phone. 3. Before a clinical placement starts, the respondent uses information recorded on ClinConnect as a planning tool, but students do not have access to ClinConnect and they do not have direct contact with Mr Corbett. 4. Mr Richer stated that there are a variety of ways in which a preceptor will provide feedback to a student and report on their progress during a clinical placement. They will usually provide informal feedback about their performance, verbally debriefing with them and if any incidents occur, reporting them to a more senior staff member in accordance with normal procedures. The preceptor is also responsible for completing any formal evaluation of a student's performance on a clinical placement for the purposes of the student meeting the assessment outcomes of their placement. 5. Mr Richer stated that different universities manage their assessment process differently. Ordinarily it involves the student and the preceptor jointly completing an evaluation form at the conclusion of the placement that both parties sign. He stated: 46. Some universities expect students to submit this evaluation form to them independently once it is completed – however, there have been issues in recent years with some students fraudulently completing evaluation forms by forging their preceptor's comments and signature. Because of this, some universities now ask that the preceptor submit the evaluation form to the university at the conclusion of a placement, instead of the student submitting it. 47. Where there are concerns that a particular student or students may not provide the correct evaluation form to their university, where a preceptor has difficulty completing an evaluation form, or where concerns arise after the conclusion of a placement that a preceptor did not include in the form, I would expect that the preceptor take steps to report those concerns as outlined in [39] above. 48. In such circumstances, I would also consider it reasonable for the preceptor to retain a copy of the evaluation form completed, in order to keep a contemporaneous record of the comments that they have made (although they are not expected to do this in every case). 49. Where a preceptor has been provided with or knows a direct contact number for the student's university, it may be appropriate for the preceptor to contact the university directly – for example, if they have queries about how the evaluation form should be completed, or want to check whether the university has completed the correct form. However, if a preceptor does do this, I would expect them to also keep their own supervisor, the Duty Operations Manager, and the Duty Education Manager abreast of those communications… 52. In some cases, it will be appropriate for NSW Ambulance to provide feedback to a student's university outside or, or in addition to, the formal assessment documentation that the preceptor completes for a student. This will usually only occur if NSW Ambulance has significant concerns about a student's behaviour or their welfare… 57. Where a preceptor has concerns about a student (whether these arise during or after a placement, and whether or not they have been recorded in the student's assessment documentation), my expectation would be that the concerns are relayed to their Duty Operations Manager through the Duty Education Manager, so that my team can consider whether any action needs to be taken in relation to those concerns, including relaying them separately to the university… Submissions 1. The Tribunal noted that it had heard what the applicant has had to say about the extensive number of submissions that were filed and asked the parties whether it is necessary to read each and every paragraph of those documents. 2. The Tribunal requested the parties to make oral submissions that draw attention to relevant parts of documents, and that if that was not going to be possible, they would be required to file a single set of written submissions that summarise their cases. 3. The applicant's agent replied that the applicant had filed final submissions. The Tribunal asked him whether these were the only sets of set of submissions he would be referring to? He replied, "We would be comfortable with a decision being made on the papers on our final submissions of 1st August, Senior Member." Applicant's final written submissions 1. These submissions have been discussed previously in this decision in relation to the issue of whether they contained any direct evidence of relevance from the applicant. Applicant's oral submissions 1. The applicant's agent made submissions and the following exchanges followed: Applicant's agent: We're looking at the documents of the 2024 the material and reply. It's titled "Applicants final submissions and materials and reply lodged on 1st August". You will have a red binder and there is also one for the 2023 case. Tribunal: OK. Start with the 2023 case. You can take me to relevant pages. Applicant's agent: I would take you to page 17... Tribunal: OK, so now. I'd like to get the letter. Alright, so I'm now looking at the applicant's final submissions and materials in reply in the 2023 case. Applicant's agent: Senior Member this is the first time I'm doing this so can I receive your instruction about how I should move ahead with this? Do I do this summary form? Tribunal: I don't know what's evidence and what isn't. You can draw me to particular paragraphs if you want. I don't expect to hear you read your submissions in full, but I do expect you to tell me what you think is relevant to. Applicant's agent: OK. So if I can set the scene in terms of submissions. Tribunal: You might start with a summary of what you say your case is. Applicant's agent: This is a case in relation to an alleged breach of s 14 of the PPIPA insofar as obviously the respondent failed to provide to the to applicant, access to personal information that she's requested, without excessive delay or expense. Tribunal: What's the expense that's been involved? Applicant's agent: We concede there is no expense. We're looking at excessive delay. Tribunal: And I know you've told me this on Friday, but I have to go back through my notes, what is the period of the alleged delay. You could let me finish a sentence before you jump in. I understood it was from the date that Mr Kelly made his original decision until the date just prior to the case conference, when the final documents were provided to you. Is that correct or not? Applicant's agent: That is part of why he issued ,summonses which have found further documents after that time. We allege that under summons to produce documents, information has been discovered that was part of the original s 14 request. Tribunal: Right. And when was where is this set out in the application? I'm trying to get the period which you say satisfies the definition of excessive. delay Applicant's agent: I can take you to page 73 of the document in front of you. There's a timeline in in this document, and at the top of the timeline for the relevant events you'll see a red bookmarking open. There are 4 in total going across the timeline that are the relevant times the applicant received her documentation in relation to her request. Tribunal: It's only in relation to the request that's the subject of this application, yes?. Applicant's agent: Yes, the top arrows where the red marks are in relation to this application. Tribunal: So are you able to take tell me the period of time or not? Can you give me the dates? Applicant's agent: Yes, this tells us the dates and the time, so the… Tribunal: I'm just asking you to tell me the dates. Applicant's agent: The date of the original decision was 24th April 2023. Tribunal: Until when? Applicant's agent: Until the internal review decision on 14th November 2023, when further documents were provided. Tribunal: And then you've just told me that there's another period after that. Can you give me the end date please. Applicant's agent: The end date was 9th February 2024. Tribunal: OK. Are you able to give me the start date and the end date of the period that you say satisfies the definition of excessive delay? Yes or no? Applicant's agent: We believe that to end when the final documents were provided on the summons. Tribunal: What day in July? Applicant's agent: The day that the applicant saw those documents in terms of coming into the NCAT was, I think 17th July, this document timeline hasn't been updated for those summonses. Tribunal: And that's 17 July 2024, yes? OK. So that's the period of you say that is excessive delay. OK what's your next point? Applicant's agent: Sorry. Tribunal: What's your next point? The first point you took me to was excessive delay. That's the period. What's the next point? Applicant's agent: What we are going to take you to are reasons why we believe that the public interest test had no application. Tribunal: How many times have I got to tell you that I have already ruled on that. It's not relevant, it's not relevant to a privacy breach. Applicant's agent: Sorry, I thought you understood from your early directions that this was an issue. Tribunal: I am concerned with the conduct. You can make submissions on matters that are relevant to the matters I have to determine. Anything else is wasting time. Applicant's agent: Right. So OK, so my red bundle goes to submissions on why the public interest test is not applicable, but you're saying that is irrelevant. Tribunal: For the last time. It's irrelevant. Applicant's agent: OK. So that would be about use and that is in the second proceedings. Tribunal: OK, what's your next point on the 2023 proceeding? Applicant's agent: Well, given that we have no right to provide submissions in relation to the application of the public interest test, 3 of our submissions in this document that we are looking at would go away straight away. Tribunal: OK, what pages do I disregard? Applicant's agent: I before I make that presumption I want to make sure that that is the case is that... Tribunal: Do I really have to repeat my ruling again? Applicant's agent: So I cannot bring any item of our submissions that are based on the proposition that the public interest test shouldn't have been applied to the applicant's s 14 request, and if that's the case, she would have got all of her information on 24th April when Mr. Kelly made his decision and not later. Tribunal: If this was a GIPA review, the issue would have been whether it was reasonable for the respondent to make that decision and apply the public interest test. Applicant's agent: And we say in our in our submission, that's not. Tribunal: And I have said that that's not going to assist me one way or the other because I am not conducting a merits review of the decision. I am concerned with the conduct. Applicant's agent: Well the … Tribunal: I cannot make it any clearer than that. Applicant's agent: Senior Member, the conduct which we go to is as per the applicant's application for internal review, the respondent made errors of fact and judgment in the application of the personal factors test from the GIPA provisions and in relation to the personal interest considerations. Tribunal: Is there any point in my making rulings in this matter seeing that you are not listening. Allchurch: So you remember, as I understand the applicant's case, the claims of the application of the public interest considerations against disclosure was wrong and reckless or erroneous. I think those words were all used and that the consequence of that application of the public interest considerations against disclosure led to an excessive delay for the purpose of s 14 of the PPIPA. Now in my submission, that's wrong as a matter of law, but I don't, I don't think you should disregard the applicant's submissions. I think you should consider them and consider my submissions in response. Tribunal: I'm finding it very hard to see that what the applicant is putting to me is in any way shape or form relevant. Applicant's agent: But our proposition was and it started in the applicant's internal review application, was that both the personal factors relied on by the decision maker and public interest considerations against disclosure were either recklessly applied or not applied according to the facts, or were in in one case, an oppressive use of those provisions. Tribunal: OK, I've noted that anything else? Applicant's agent: So that that those issues go to 3 of the contraventions we look at in the 2023 case and you'll see those, that is the student placement agreement contravention which… Tribunal: Where do I find this? Applicant's agent: That's starts at the bottom of page 17. Tribunal: I've got no power to interpret the Student Placement Agreement between UTAS and the respondent. Applicant's agent: The proposition is that the respondent had an obligation to provide the assessment information to the applicant and when it didn't do so at the end of the placement, there was non-performance of this agreement. Tribunal: Are you asking me to make findings based on alleged breach of contract between the other 2 parties? Applicant's agent: Oh yeah. One was the applicant's right to get the get their... Tribunal: So you're saying, hang on, please don't cut me off. I'm trying to grasp what you're saying. So what you're saying is that because there was a student placement agreement that imposed obligations on UTAS and the respondent, there was a breach of that contract because the final assessment by the preceptor was not provided to your client on the last day of the clinical placement? Applicant's agent: Correct. Tribunal: And I do not have power to interpret that contract or determine whether or not there's been a breach of that contract. Your client is not a party to that contract. Applicant's agent: But she started the placement. Tribunal: She cannot claim there was a breach of privacy based on that ground. Applicant's agent: What? The proposition the applicant is making is that when Ambulance didn't give her the assessment details, which they are required to do under a legal agreement, the applicant made an application under s 14 to otherwise obtain the information. There should be no reliance on public interest because the public has no interest in getting in the way of someone receiving their documents. Tribunal: Do you understand this, Mr Crown Solicitor. We seem to be going around and around in circles. Allchurch: I think I understand it's proposition, but I don't… Tribunal: I don't see how it arises under s 14. Allchurch: No, it doesn't arise under s 14 and it's, as you say, the Tribunal has no jurisdiction to interpret the contracts to which (FTD) was not a party. So even if you did have jurisdiction, which you don't, there would be a question of privity of contract. Applicant's agent: Well, we go what flows from the contract, the policies and guidelines that regulate the assessment obligations of the student and we've put those into our evidence. Tribunal: Well, with, with all due respect, there are documents before me. This was not addressed by your client in any direct evidence. because she didn't file any. Applicant's agent: She has signed the document you're looking at. Tribunal: Which are submissions. We went through this at considerable length on Friday and I gave you leave to rectify it over the weekend. And you didn't. Applicant's agent: And these submissions are referenced into the bundles, into the guidelines and the procedures that say that she should have got this information. Tribunal: And if you and if your client is aggrieved and she says that the respondent breached its policies in some way, shape or form, that is a matter for another venue and it does not concern me under s 14 of the PPIPA. Applicant's agent: What we're our proposition is… Tribunal: I understand your proposition. You're clutching at straws. Applicant's agent: But we shouldn't be disallowed the opportunity to say that the public interest… Tribunal: You've had every opportunity to put on evidence in this matter. You have not done so. Applicant's agent: We've put on evidence of... Tribunal: This is not evidence. These are submissions. Applicant's agent: We've put on evidence of the procedures and guidelines that said that she should have got her documentation. And she didn't. Tribunal: And she could not get the documentation until it was completed. And we've heard evidence about why it was not completed on the day. And we've also heard evidence about why that came to be the case, when the assessment form was not provided to the respondent's preceptor until the last day of the placement. Now you can argue about policy if you are wanting a merit review of the assessment process. I am not conducting a merit review of the assessment process. I have noted what you've had to say about the delay. I've noted what you have to say about personal factors and the public interest considerations against disclosure. I do not have power to interpret the Ambulance Service's policies or procedures in the guise of a PPIPA application. Applicant's agent: But if it's relevant to the determination of whether a public interest test applies, isn't it.. Tribunal: I've noted your point about the public interest test applying. I do not have power to interpret the Policies. I am not doing a merits review of the assessment process. I'm considering whether there is a breach of the privacy legislation. Can we please move on? Applicant's agent: Well, then our submissions go to then excessive delay and the matters we've talked about in terms of when the documents have been provided. Tribunal: You say there has been an excessive delay. OK, I understand that. Applicant's agent: Yes, we we we we we will say it is an excessive delay. Tribunal: I've got that. Now can we move on to your next point in relation to the 2023 proceedings. Applicant's agent: Well, that is that is the extent of our issues in terms of excessive delay of the documentation she didn't receive. Tribunal: OK. Now can we move on to 2024 proceedings then? Allchurch: Senior Member, I note the time... I'm certainly content to sit through any lunch period and I'll endeavour to keep my submissions as short as possible. Tribunal: Thank you. I have the benefit of the written submissions in any event and I will be reserving the decision, so no one is going to be adversely impacted. And I'll be giving the matter due consideration before I write my decision. OK, the 2024 proceedings. Applicant's agent: Yes, Senior Member. If we can go to the collection. So this issue this matter in terms of the second proceeding involves an alleged breach of ss 8, 9 and 10 in respect of the collection of the applicant's personal information. Tribunal: What's your definition of "lawful purpose" with respect to the PPIPA? Why do you say it's not a lawful purpose for the preceptor to take photographs of a document that she has information into. Or is it just that the photographs were taken? Applicant's agent: Our proposition is that she's she in fact signed an evaluation form on 22nd January. Tribunal: What is the what the definition "lawful purpose" you're referring to? What do you say the meaning of "lawful purpose" is for the purpose of these proceedings and particularly s 8? I don't understand. This is the evaluation of the clinical placement. How can that not be relevant to Ambulance operations? How can that be an unlawful purpose for the Ambulance Service when it employs the preceptor. Why is this unlawful? You're saying it's not a lawful purpose? What are you relying on to prove that it's an unlawful purpose? Applicant's agent: Well, because we believe when the when the applicant... Tribunal: OK. Do you have any case law that supports what you're telling me? Applicant's agent: No, no. Tribunal: OK. So it's a lay interpretation of what you believe lawful means. Applicant's agent: I'm not a lawyer. So yes, well. Tribunal: You've come here to present a legal case. So with all due respect, that doesn't cut it. There is a long line of case law about what the meaning of "lawful purpose" is for the purpose of s 8, and it does not include what you've just put to me. Applicant's agent: Our proposition is that the applicant signed a record on 22nd January being the evaluation forms as a true and correct record of the placement. That record suggested that the applicant passed the placement, met expectations of all learning outcomes. So she's in effect signing a document that she knew to be false. Tribunal: Well, if you're going to say she signed a document that she knew to be false, I am not conducting a merit review of the assessment process. How many times have I got to say that. Applicant's agent: So I cannot raise that proposition in this matter? Tribunal: Not in relation to this privacy dispute, you can't. If you if you want to argue that the Ambulance Service breached its policies and procedures, then you can do so in another venue, but it does not arise under s 8 of the PPIPA. Applicant's agent: We're saying the reason that the preceptor took photos of the documents and collected the information was to impugn the evaluations. Tribunal: And there is no factual basis in the evidence to support that proposition. Applicant's agent: That she took photographs that she took for that purpose. Tribunal: The evidence from the witness did not waver on that point. Applicant's agent: We have put on evidence. Tribunal: Well, you know you haven't. Applicant's agent: On that, we put on evidence from the University to the applicant advising the applicant that Ambulance had rescinded the original evaluation form. Tribunal: And if your client is aggrieved by the assessment process, she has rights under other legislation. I am not conducting a merits review of the assessment process. I am considering whether or not the information that was collected by the preceptor, by way of photographs, was collected for a lawful purpose. And so far you have not pointed me to any case law that supports your case or even provided me with any clear understanding of you believe "unlawful purpose" means. Applicant's agent: Well, we were suggesting an unlawful purpose is a purpose of collection where you're undertaking collection with the motive to impugn a document. Yeah. That you have signed as a true and correct record. Tribunal: And I understand that. Applicant's agent: We don't believe that's the purpose of Ambulance to do that. Tribunal: And that is not a matter for me. How many times have I got to try to explain this to you? If you are aggrieved by the actions of the Ambulance Service under the Student Placement Agreement between the Ambulance Service and UTAS, then that is a matter for a venue quite different to where I am sitting at the moment. There is High Court authority on this. There is Supreme Court and Court of Appeal authority on this, none of which refers to what you're trying to raise. Section 8(1) is to be read with s 8(2) and the latter prohibits collecting information by any unlawful means. "Unlawfully" is read naturally as the opposite of "lawful". In s 8(2) it means "prohibited" and thus lawful, is apt to mean something which is "not prohibited". There is no prohibition on an employee of the respondent, who was appointed as the preceptor, to collect information directly in relation to the assessment that she was required to conduct in the course of her employment with the respondent. Applicant's agent: In this submission, we... Tribunal: I cannot make it clearer than that. It is not an unlawful purpose. Applicant's agent: In this submission, we read the submissions on liability by the Crown Solicitor and we conceded that they weren't collected by unlawful means. Tribunal: So why have you just referred me to unlawful collection? Have you conceded s 8(1) or is it still pressed? Applicant's agent: No. Stay with me. Tribunal: It's either pressed or it isn't. Applicant's agent: I'm just looking at the section again, sorry. Tribunal: It says: The public sector agency must not collect personal information unless the information is collected for a lawful purpose that is directly related to a function or activity of the agency. You've heard my views on that. And the collection of the information is reasonably necessary for that purpose. You've heard my view on that. Applicant's agent: What is that view? Tribunal: That it is reasonably necessary. You've conceded "unlawful means" so is your ground under s 8 pressed or not? Applicant's agent: Bear with me. So we concede "unlawful means". Senior Member we concluded that it was in our original submissions and then we conceded that the taking of the photograph with the iPhone was not unlawful because it was not forbidden, as you say. Tribunal: So are you relying on s 8 or not? Applicant's agent: Excuse me. Bringing up the limbs of s 8 here. Tribunal: I've just read them onto the record. Allchurch: Senior Member, I think you've made your views of s 8(1) clear. Tribunal: I have made my views well and truly clear. Allchurch: And I would embrace those views. I don't think (the applicant's agent) should be required to withdraw or not press s 8. Tribunal: I'm simply asking whether, given the concessions that he's made and the rulings I've made, whether this is still an issue in his case. Applicant's agent: We don't withdraw our contentions in relation to s 8(1). We do in relation to s 8(2). Tribunal: OK. Then move on please. You've heard my views on it based on the case law from the High Court and the Court of Appeal. Applicant's agent: Section 9. Go to page 27. Tribunal: OK. Applicant's agent: So we're going to s 9. We say that Miss Thorn did not collect the personal information directly from the applicant. So our proposition here is that the photographs were taken at a time when the applicant was away from her evaluation forms. And that was the moment that the respondent's employee decided to take the photos without the applicant being aware that they were taking the photos. And therefore, she couldn't have directly obtained them from the applicant in the sense that the applicant was not there. She didn't ask for photos for to be taken and was not aware that photos had been taken until access to those documents was obtained under the s 14 request. Tribunal: And what do you say flows from that? Applicant's agent: Well, we say that the applicant individual didn't authorise the collection. Tribunal: I understand that's what you're saying. I'm asking you, what flows from that? Applicant's agent: In, what capacity? Tribunal: This is your case. What do you say flows from that? Applicant's agent: Well, we believe that they have breached s 9 of the Act. Tribunal: And what do you say flows from that breach? I understand this is a hearing on liability, but I would like to know where it is eventually going to go. Applicant's agent: So I'm trying to confer my notes here. Well, if she if she couldn't be aware that the photos were directly taken from her. Then she couldn't... Tribunal: You're not answering the question. No, you're not. Applicant's agent: No, I'm not, am I? Tribunal: What else is new? I'm serious. I've given you considerable leeway and you just ignore it. All right. We'll just move on. We'll deal with that in due course as the need arises. I can see that I am not going to get an answer. OK, what's your next one? Section 10? Applicant's agent: What? What? What do you ask? I've stated that the reasons why… Tribunal: And I've made a note of the reasons. You are not answering the question that I've put, so I'll move on. Applicant's agent: I'm not quite sure I understood it. Tribunal: And s 10, page 30. Applicant's agent: Yes. Our proposition here is we allege breach of s 10 because the photos were taken at a time that the applicant was away from her evaluation forms and she was not told that the photographs were going to be taken either at that time or any reasonable time thereafter. In fact, the only time she came aware that the photos had been taken was when they were released under the decision of Shaun Kelly on 24th April 2023. Tribunal: OK. And what case law are you relying upon for these submissions? Applicant's agent: I have no direct reference to any case Senior Member. Tribunal: So there's no case law that you can direct me to that says that I have to make a finding that there is a breach under s 10? Applicant's agent: I was of the understanding that for a, for a layperson, applying and identifying the law was not my problem. Tribunal: You are appearing as an agent in legal proceedings. You are representing the interests of (FTD) in legal proceedings. One would expect that you would have at least done some research in relation to case law to support your arguments. Applicant's agent: I've certainly looked at case law, but unfortunately... Tribunal: But you can't refer me to any case law that supports your proposition. Applicant's agent: Any case law? Well, there would be plenty of cases on my computer here, but I'd have to go to… Tribunal: Toward the end of day 2. Applicant's agent: I have them. I know, I have them categorised by collection, use and so forth, but doing that now would… Tribunal: It's a bit late. Applicant's agent: I got the time of the… Tribunal: It's a bit late. Applicant's agent: Yeah. Tribunal: It's the end of day 2 and you're making submissions that the Tribunal should apply the law in a particular way and the onus is on you to persuade me. And so far, there's nothing other than your proposition. Applicant's agent: You require a sighting of particular cases. Tribunal: It's a bit late now. You have run this case against my warning on day one that there was no direct evidence. You decided to proceed. Applicant's agent: I didn't know. I had… Tribunal: You have made submissions without any supporting case law. And your argument is, well, I should simply find in your favour. But you can't give me any reasons why? It's not very good. Applicant's agent: I understood that debate… I was to present the facts… Tribunal: Well, with all due respect… you could have instructed a solicitor to act for your client. Instead, you've chosen to do it yourself. Applicant's agent: I choose to do it myself. My, applicant exhausted all her possibilities of obtaining legal aid. She went the Law Society. She went to six law firms. She went to the Marrickville Legal Centre. She went to Justice Connect. They all rejected her case so I stepped in Senior Member. Tribunal: Maybe there's a reason why the case was rejected. Anyway. What else do you want to tell me about s 10? Applicant's agent: Well, the information was collected without her knowledge. Tribunal: I'm asking you about s 10. Applicant's agent: She wasn't made aware by Ambulance of the collection of the photographs of her evaluation form. And she only became aware after she got access to the forms that had used the images taken on the last day of her placement in an alternative evaluation document. That's when the applicant first became aware that photographs have been taken on 22nd January 2023. In relation to her evaluation of her course that she only got access to, she was failed in her course on 13th February, but never got access to the alternative evaluation documentation until 24th April 2023 under the access request. And that's when it became clear to her. When she's seen the images that ohh when I was away that day for my evaluation forms, someone has taken photographs of them in my absence. In fact, the applicant has put on evidence to suggest that she was taken away from her evaluation... Tribunal: How many times do we have to go through this? The fact that she signed submissions does not make it evidence. She did not give evidence about this matter. There is no statement of evidence before me. Applicant's agent: We were going to do it and you stopped me asking questions. Tribunal: No, we were not. You were we were not going to do that at all. I gave you… please… I gave you leave to prepare a statement for your client to file with the Tribunal today. You did not do that. The applicant was called because the respondent wanted to ask her some questions, and because there was no direct evidence before me from her on relevant matters, I allowed you to re-examine her based on matters arising from the respondent's cross-examination. We went through this at considerable length on Friday and you decided to proceed anyway. Applicant's agent: We had questions prepared today for the applicant. Tribunal: I did not give you leave to call your client to give oral evidence. I did not give you leave to call oral evidence from your client. I gave you leave to prepare file and serve a statement which you did not do. Applicant's agent: Is it a normal function of this court that should be given due process? Tribunal: You have been given due process. There were orders made in February about the filing of evidence. Applicant's agent: She was going to put on her evidence today in oral submissions. Tribunal: And I said to you on Friday, it will not be oral evidence. That's why I gave you leave… Well, that's your problem. It is in the transcripts. I said it several times. Applicant's agent: No, I didn't get that. You asked my client to prepare… Tribunal: I ordered your client to prepare a statement of facts and to file it and serve it by this morning and you did not prepare it. Applicant's agent: I didn't know that you put a prohibition on her providing oral evidence today. Tribunal: I said on Friday that you can prepare, file and serve a statement of evidence. Full stop. End of story. You announced this morning that you hadn't prepared a statement, but you were proposing to question her. Applicant's agent: We gave reasons, we gave reasons. Tribunal: And I ruled against you on that. And well, you proposed to ask her questions in order to lead her through her oral evidence. And I said no because of the orders I made last Friday, which she did not comply with. So can we now move on please? Applicant's agent: Senior Member we had a list of about 80 questions to ask my client about. Tribunal: Excuse me. You were given leave on Friday when I had no obligation to give you leave because you disregarded the Tribunal's orders. I have given you significant latitude. Applicant's agent: And we went around that. Tribunal: And you did not take advantage of that leave. And here we are in closing submissions. Applicant's agent: On the weekend, there's not enough time. Tribunal: Well you could have pulled the plug on Friday and come back when you were properly prepared, but you did not do so. Applicant's agent: Everything happened. We were going to do that. We were actually going to do that, but you wanted to go ahead. So we did. Tribunal: What's next after s 10? Or is that it? Applicant's agent: That's it for collection. Tribunal: And your next point? Applicant's agent: Is s 16 which goes to page 37. Our proposition here is that the respondent used personal information of the applicant. Tribunal: No, no, no, no. Section 16 is about checking the accuracy of personal information before it's used. How does taking photos of the assessment form invoke s 16? Applicant's agent: Because of what they did with those photos. Tribunal: No, no, no. I'm not concerned with what they did with them under s 16. Section 16 obliges the agency to check the accuracy of personal information before it's used. Applicant's agent: Yes. And we believe… Tribunal: Are photographs, not a not an accurate reflection of the assessment form. Applicant's agent: Because they were merged with annotations, that changed the photos from met expectations to below expectations. Tribunal: No, that is a review of the assessment form. The photographs themselves were the photos that were taken off the assessment form on the last day of the placement. Applicant's agent: Yes, but we're talking… Tribunal: How is that not an accurate reflection of the information contained in it? Applicant's agent: We're talking about the document. I'm not talking about the photographs. I'm talking about the document that was produced by the respondent. Tribunal: You're talking about the file note? Applicant's agent: No, I'm talking about the attachment to the file note, which, well, they're more than photographs. The attachments are a combination of the photographs into another document… Tribunal: Which were the photographs? OK. Applicant's agent: Annotations on that new document that the images have been used into, which provides an alternative assessment for the applicant and we say that's a use of her information that falls within s 16. Tribunal: What case law do you rely upon? I think I know what the answer is going to be. Applicant's agent: You know the answer. Tribunal: There is no case law that supports your argument that s 16 applies in the circumstances. Applicant's agent: I'm sure there is, but I haven't found. It. Tribunal: OK, next. Applicant's agent: That's in relation to the merging of the images with the annotations, of the words "below expectations", we believe that was a use and we believe those documents don't meet the test of s 16 because there are change of the evaluation forms. Tribunal: We're not talking about the evaluation form, you're talking about the personal information in it, and in this case the personal information is the information input by your client that was not changed. The evaluation was changed. Applicant's agent: I'm not talking about that. I'm not talking about the images, I'm talking about the document that Ambulance created through a combination merging of the images with annotations onto that merged document, that said that the new document was now an alternative evaluation of the applicant. That is a separate document to the images. Tribunal: And how does that possibly invoke s 16? Applicant's agent: Because we say that that document was, is not a… Tribunal: It's an accurate reflection of the personal information that's been input by the preceptor and it's an accurate reflection of the personal information that was input by your client. Applicant's agent: We don't believe it is because if we'd been able to give evidence today, we would have provided to you evidence to support… Tribunal: With all due respect. Applicant's agent: Well, you can keep jabbering at me if you want. I just put our case that you would have the information if the applicant... Tribunal: Provided the evidence to begin with. The applicant has been given every opportunity to provide evidence and I could have proceeded in this case on Friday in the total absence of any evidence from the applicant. And I told you that. Applicant's agent: All employees of the respondent been able to provide their evidence. Tribunal: Yes, because they were ordered to do so in February and they complied with the Timetable and two of the witnesses were here because you summonsed them and they did not provide statements in the proceedings. OK, what else? What's next? Applicant's agent: We haven't finished with s 16 because there are two other documents. There is the final note on 2nd February, which we don't believe meets the test in s 16, by not being relevant, accurate, complete. Tribunal: It requires the agency to check the accuracy of personal information. Applicant's agent: The consequences of those documents Senior Member… Tribunal: I'm not concerned with the consequences of those documents. The University made that decision. Applicant's agent: Correct. Tribunal: And whether or not the assessment process under the contract between the Ambulance Service and UTAS was reasonable or not is not a matter for me under s 16. I cannot make it any clearer than that. Applicant's agent: We are saying that documents shouldn't have been used because it was not accurate. Tribunal: Not relevant. You are saying that you are aggrieved. Applicant's agent: Misleading. Tribunal: We've heard evidence from the preceptor. There was no concession on her evidence as to the reasons why she did what she did. Applicant's agent: But you didn't hear the evidence of the applicant. Tribunal: Because you did not file it. Applicant's agent: we were ready to do that today. Tribunal: No, you weren't ready to do that today because you did not prepare the statement that I ordered you to prepare. Applicant's agent: I have questions to prepare here today for the applicant. Tribunal: You are not listening to me. I cannot make you listen to me. But it's too late in the day now. I have given you leave. I have given you latitude and you just keep coming back at me with the same mantra and it's not going to work, because we're in submissions. Applicant's agent: And don't we get the applicant on the stand? Tribunal: The applicant is not going in the stand to give evidence on her own account without a statement. Applicant's agent: Why can't we provide oral evidence? Tribunal: Because this is not an oral evidence jurisdiction. Applicant's agent: We have microphones here. We can hear each other. Why can't we do that? Tribunal: Because we don't do that. Applicant's agent: Why is a document.. Tribunal: You were ordered in February to file and serve evidence. You made a decision on what to file and how to prepare the case. You are now stuck with that. I gave you leave on Friday to try to remedy this. You did not do so. I am not now in the latter stage of submissions when your client has been present the entire time and has heard what everyone has had to say to give her the opportunity to jump in the witness box and fix the gaps in her case. Applicant's agent: We were not going to do that. We were we were happy to present our evidence on day one. It was only because we had people coming from Tuncurry by order of this court. Tribunal: No. You were not going to be presenting your case on Monday because you did not have evidence in the case. And please don't repeat what you said to me at some length on Monday. Applicant's agent: We had discussions with the respondent that we would want to put our applicant first and there was disagreement with that and then we agreed with the respondent that the order of the program should be their evidence first. Tribunal: Yeah, but there was no evidence from your client. Please do not argue with me on this. Applicant's agent: And we didn't think that was going to be pretty different. We didn't believe that the process of the court was to prejudice us putting on evidence. Tribunal: Well, you've been misinformed. Applicant's agent: Isn't oral testimony the best testimony? Tribunal: No, not in an administrative review Tribunal. Applicant's agent: Over and above documents statements, is not oral testimony the best evidence? Tribunal: Is there anything else you want to say? Applicant's agent: No, that is it. Thank you. Tribunal: OK. Is that the close of your submissions? Subject to anything that the respondent says. Applicant's agent: No. Tribunal: So what's the next section you are relying on? Applicant's agent: Disclosure. Section 18. Tribunal: OK. And how is section 18 invoked? Applicant's agent: Stay with me. Tribunal: Is it not directly related to the assessment process? And please don't say "well, we would have thought.." That's not the test. Applicant's agent: The item of disclosure is restricted to the file notes disclosed to and from the Respondent to the University. Our issue is not with the file note. Our issue is in respect of the images that flowed from the collection of photographs on 22nd January into NSW Ambulance's systems and then were attached to those file notes, not the file notes themselves. We understand that Ambulance can contact the University about the applicant's placement, but we believe that to the extent that they shared the photos taken when she was not aware that those photos were taken and attached them to those file notes, that the disclosure of those images didn't meet the standard of s 18 insofar as the individual concerned would object to that disclosure, given that if she had known the photos were taken, she definitely would have. Tribunal: If you say Section 18(2) applies, is UTAS a public sector agency? Applicant's agent: I'm not sure. I wouldn't think so for the purpose of NSW. Allchurch: It's outside of the NSW legislation. Tribunal: I wouldn't have thought so. So are you relying upon s 18(2)? Applicant's agent: No. Tribunal: And again, no case law? OK. Anything else? Applicant's agent: So you know, we thought the Tribunal would put their mind to the case and the citation of case law… Tribunal: The Tribunal will consider the case law and how it applies to the established facts in this matter, but it's usual for the parties to direct the Tribunal to any particular authorities that support their propositions. Applicant's agent: Sorry, it's been it's this is our first time in this Tribunal, so what may be usual others wasn't not usual for us. Tribunal: I believe it's the same in all administrative review Tribunals. Oral evidence oral evidence is only allowed in exceptional circumstances or in cases like this, where parties that have not provided statements are summoned to give evidence. Applicant's agent: We would submit that that's prejudicial to our case. Tribunal: Well, those are the Rules, whether that prejudices your case or not is another matter, because that is the framework under which I, as a Senior Member, must operate. Respondent's written submissions 1. On 30 May 2024, the respondent filed written submissions in relation to both proceedings. These effectively summarised the chronology referred to in Mr Henderson's evidence (Ex A and Ex B and the Exhibit JH-1). 2. The Tribunal has no jurisdiction to review conduct under s 55 of the PPIPA unless the applicant has applied for internal review of the relevant conduct. The scope of a agency's conduct that the Tribunal has jurisdiction to review under the PPIPA is determined by the scope of the conduct complained of in the application for internal review. 3. The Tribunal's role in proceedings under s 55 is to review the agency's conduct that, on a fair reading, was the subject of the application for internal review and to "decide what the correct and preferable decision is having regard to the material then before it": CYL v YZA [2017] NSWCATAP 105 (CYL) at [58]. 4. On reviewing the conduct of the relevant agency, the Tribunal may decide not to take any action on the matter (s 55(2)), or it may make one or more of the orders described in s 55(2)(a) to (g) of the PPIPA. In undertaking its review, if the Tribunal is left in a state of uncertainty in relation to a fact in issue after reviewing all the available evidence, that fact should be decided against the applicant because it is the applicant in privacy proceedings who bears the practical onus: see KP v Narrandera Shire Council (GD) [2011] NSWADTAP 15 at [31]; BYW v Commissioner of Police, NSW Police Force [2015] NSWCATAP 270 at [112]. 5. In Collins v Department of Fair Trading [2019] NSWCATAP 199 at [47], the Appeal Panel determined that although neither party bears an onus of proof in administrative review proceedings, "[t]here is a practical onus on the party who raises a specific fact for consideration to prove the existence of that fact." 6. A public sector agency's "conduct" for the purposes of ss 53 and 55 of the PPIPA includes any accrual or alleged contravention of the IPPs that apply to the agency: see s 52(1)-(2). The IPPs are set out in ss 8 to 19 of the PPPA and apply to a public sector agency: see s 20(1). A "public sector agency" includes a "statutory body representing the crown": see s 3(1). The respondent is a statutory body representing the Crown, which is established under the Ambulance Services Act 1990 (NSW): see s 4 of that Act. Therefore, for the purposes of the PPIPA, the IPPs apply to the respondent. 7. The applicant alleges that the respondent breached: 1. Sections 8 to 10 of the PPIPA, which limits the collection of personal information; 2. Section 14 of the PPIPA, which requires the provision of access to personal information, on request, without excessive delay or expense; 3. Section 16 of the PPIPA, which limits the use of personal information; and 4. Section 18 of the PPIPA, which limits the disclosure of personal information. 1. The applicant alleged that the respondent had not complied with s 14 of the PPIPA because: 1. It continues to hold personal information that it has not provided to her in response to her access request, because it has not conducted reasonable searches for that information; and 2. To the extent that that it had provided her with personal information that was sought in her access request, It did no with excessive delay, caused by the misapplication of "the public interest test" in its initial decision on 24 April 2023, and its failure to release unredacted versions of the emails that she sought with its internal review decision on 14 November 2023. 1. The respondent argued that the Tribunal should not find that the respondent breached s 14 of the PPIPA on these bases. 2. The respondent also argued that it undertook reasonable searches to identify the personal information sought by the applicant. By virtue of s 20(5) of the PPIPA, provisions of the GIPA Act (which impose limits on an agency's obligation to provide access to information are also applicable to the agency's determination of a request under s 14 of the PPIPA. Section 20(5) provides: General application of information protection principles to public sector agencies … (5) Without limiting the generality of section 5, the provisions of the Government Information (Public Access) Act 2009 that impose conditions or limitations (however expressed) with respect to any matter referred to in section 13, 14 or 15 are not affected by this Act, and those provisions continue to apply in relation to any such matter as if those provisions were part of this Act. 1. There are numerous provisions in the GIPA Act that impose "conditions or limitations" on the obligation of public sector agencies to provide access to government information (which is a "matter" referred to in s 14 of the PPIPA). Another such provision is found in s 53 of the GIPA Act. This provides, relevantly: Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. … (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources. (Emphasis added). 1. Reading s 20(5) of the PPIPA and s 53(2) of the GIPA Act together, the obligation of a public sector agency to comply with a request for personal information under s 14 of the PPIPA is limited to an obligation to provide such information to an applicant as can be found by undertaking "reasonable searches". 2. In EEH v Insurance & Care NSW [2022] NSWCATAD 82, at [115] to [118], Senior Member Higgins made the following comments relevant to the interaction of these provisions: 115. In DVT v Commissioner of Police [2021] NSWCATAD 108 (DVT), at [57], the Tribunal noted that public sector agencies must have systems in place to deal with an access request under the PPIP Act and the HRIP Act: IPP 13 and HPP 6. This includes conducting reasonable searches for the information sought. 116. In BNQ v South Eastern Sydney Local Health District [2015] NSWCATAD 156, at [26] to [29], the Tribunal noted that while there were no direct precedents on what constitutes 'reasonable searches' for information sought under the access HPP in the HRIP Act, the established case law with respect to reasonable searches under the GIPA Act should be applied. This is consistent with the terms of s 20(5) of the PPIP Act and s 22(5) of the HRIP Act, which expressly provided that the provisions of the GIPA Act apply to the access IPP in the PPIP Act and the access HPP in the HRIP Act. (emphasis added) 1. The Tribunal went on to say that in administrative review proceedings relating to access to information under the PPIPA, the agency has "a forensic onus… to establish reasonable searches were conducted during the relevant timeframe: EEH at [117]. 2. What constitutes a reasonable search will vary with the circumstances. However, the Tribunal has held that: 1. Relevant factors include the clarity of the request, the way the agency's recordkeeping is organised, and its ability to retrieve the documents that are subject to the request by reference to the identifiers supplied by the applicant or which can be reasonably inferred by the agency from any other information supplied by the applicant: Carney v Commissioner of Police, NSW Police Force [2023] NSWCATAD 265 (Carney) at [21], citing Miriani v Commissioner of Police, NSW Police Force [2005} NSWADT 187 at [30]; Amos v Central Coast Council [2019] NSWCATAD at [14] (Amos). 2. In establishing whether adequate searches have been made, evidence must be shown as to the nature of the searches undertaken, the means of searching used and whether systems of electronic retrieval have been used: Carney at [72], citing Robinson v Commissioner of Police [2014] NSWCATAP 73 at [28]. 3. A further relevant issue may be whether material has emerged since the search was undertaken which suggests that the requested information exists and is held by the agency: Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 at [43]. 4. However, the fact that extra documents are subsequently located does not mean that reasonable searches were not made initially: MJ v Department of Education & Communities [2014] NSWCATAD 12 at [28], approved in Walker v Roads and Maritime Services [2019] NSWCATAD 177 (Walker) at [87]. 5. The fact that there may be weaknesses in an agency's searches or failures in its recordkeeping processes does not necessarily lead to the conclusion that the search has not been reasonable, or sufficient or adequate: Camilleri v Commissioner of Police (NSW) [2102] NSWADT 5 at [15] an cited with approval in Walker at [87]; Saggers v Environment Protection Authority [2013] NSWADT 109 at [49]. 1. The respondent argued that based on the evidence of Mr Henderson, the Tribunal would be satisfied that the respondent conducted reasonable searches to locate the information sought in the request under s 14 of the PPIPA. There is nothing in the applicant's submissions or in the material that she filed that provides any basis for finding that the searches were not reasonable. While the applicant asserted that the staff members who conducted the searches were compromised, Mr Henderson stated that he is not aware of any matters that would support a decision that the staff members who were contacted would not have complied with Mr Kelly's and his requests to conduct relevant searches, or that they would not have provided an honest report on the results of those searches. 2. In those circumstances, the Tribunal should conclude that the respondent complied with its obligation to conduct reasonable searches and that the respondent does not hold any additional information that falls within the scope of the access request, which has not already been provided to the applicant. 3. The respondent also argued that there was no excessive delay in the provision of personal information to the applicant. The Tribunal's assessment of this issue is context dependent and must take into account the facts and circumstances surrounding the request: KT v Sydney South West Area Health Services [2010] NSWADT 94 at [45]; QN v Commissioner of Fire Brigades (NSWO [2011] NSWADT 154 at [70]. The term "excessive" should be given its ordinary meaning: AFU v Sydney Local Health District [2012] NSWADT 197 (AFU). 4. The Tribunal has previously given content to the term "excessive" by reference to both the Macquarie Dictionary definition of "exceeding the usual or proper limit or degree; characterised by excess" and the Oxford Dictionary definition of "more than is necessary, normal, or desirable; immoderate.": see LN v Sydney South West Area Health Service [2011] NSWADT 44 at [52] to [53]; LN v Sydney Local Health District [2012] NSWADTAP 9 at [12]. 5. In in Commissioner of Police v Ritson [2023] NSWCA 300 (Ritson), the Court of Appeal considered the proper construction of s 14 and held in relation to the meaning of "excessive delay". The Court held (at [50]): 50. …"delay"… imports a reasonableness test into the assessment of the response. That is, only an unreasonably slow response will constitute delay, and something more is required for the delay to be "excessive". The lapse of a particular period of time does not, without further enquiry, constitute delay. (emphasis added). 1. The Court also held that is no relevant "delay" in an agency providing access to documents, "in circumstances where the agency has decided that either it holds no documents containing personal information about the person making the request, or the person is not entitled to the documents. Whether that decision is right or wrong, does not engage the test of "excessive delay" merely because documents are not provided and the person considers that they should have been." (emphasis added). 2. The Tribunal has also rejected arguments that the relevant timeframe for assessing whether there has been an excessive delay in the provision of information is between the date of the applicant's request and the date when the applicant "actually received the requested information through the internal review process": AFU at [19], [21]. Rather, it has held that the relevant timeframe is between the date the agency received the request and the date of the application for internal review: AFU at [19]. 3. In relation to the timeline in this matter, the respondent argued that: 1. The determination of the initial access request within 40 days was reasonable in the circumstances, and was not excessive; 2. The biggest delay in the sequence of events was the period of nearly five months between the respondent's decision in relation to the access request and her request for an internal review; 3. The time taken for the applicant to lodge her internal review application is inconsistent with her position now advanced that the information in her request was sought on an urgent basis. This period of time should not be taken into account in assessing any delay in the provision of access to the information; 4. Based on the authorities cited previously, the Tribunal's assessment of any delay should also exclude the amount of time taken by the respondent to conduct its internal review. This was completed within 61 days, being only one day longer than the timeframe contemplated under s 53(6) of the PPIPA (after which the applicant would have been entitled to apply to the Tribunal for internal review); 5. In considering whether any delay in complying with the access request was excessive, the Tribunal should consider he steps that the respondent was taking between March 2023 and January 2024 to liaise with the applicant about her separate complaints relating to its alleged breaches of the PPIPA; and 6. To the extent that it is relevant for the Tribunal to consider any delay in the release of unredacted emails after completing the internal review, the information withheld by those redactions was very minimal. 1. Therefore, the Tribunal should not conclude that there was excessive delay in providing the applicant with access to her personal information and it should find that there has been no breach of s 14 of the PPIPA. 2. In relation to the "collection" of personal information, the respondent stated that it is well established that ss 8 to 11 of the PPIPA do not apply to the internal movement of personal information about an individual within an agency, or to the process of creating records of internal meetings or discussions which contain personal information about an individual. 3. Similarly, when an agency employee reduces to writing an opinion that he or she holds mentally (including an opinion about another person that amounts to "personal information" of that person, this does not constitute collection of personal information: AFP v Hunter New England Local Health District [2012] NSWADT 141 at [200]. 4. Once internal records have been created, the IPPs in the PPIPA relating to use and disclosure will apply to their contents. However, the Tribunal has said that it is "artificial" to treat such internal recording processes as being a collection of personal information to which the IPPs on collection apply: CBL at [17]. 5. In this matter, the file note dated 2 February 2023 was created by Miss Thorn and recorded her observations of the applicant's conduct during her clinical placement for the purposes of relaying those observations to the applicant's university. The file note dated 8 February 2023 was created by Inspector Dwyer and recorded a further discussion with Miss Thorn about her concerns about the applicant's conduct. Both documents record the respondent's observations of the applicant's conduct and the contents of internal discussions about the applicant. Consistently with the relevant authorities, it would be artificial to treat the creation of these records as a collection of the two file notes. 6. Therefore, the Tribunal should find that the principles governing the collection of personal information in ss 8 to 11 of the PPIPA do not apply to the respondent's creation of the two file notes. 7. The respondent also argued that it did not collect the information in the evaluation form that was provided by the applicant's preceptor. Miss thorn recorded handwritten comments about the applicant's performance on the evaluation form and retained a copy of those comments by photographing them. This did not constitute a collection of the applicant's personal information. It would also be artificial to characterise the process of Miss Thorn reducing her own opinions to writing as a collection of the applicant's personal information. this is not altered in circumstances where Miss Thorn kept an electronic record of the opinions that she wrote down, by taking photographs of the form she had just completed. 8. The respondent argued that the evaluation form was collected for a "lawful purpose" directly related to a function or activity of the respondent: s 8(1). The operation of s 8(1) was recently confirmed by the Court of Appeal in Norkin v University of New England [2023] NSWCA 194 (Norkin). In that matter, the Court determined that: 1. There is a contrast between the purpose for which the information is collected, and the function or activity of the agency. The purpose is the end, or the objective or the goal in the furtherance of which the information is collected. As already noted, there may be more than one purpose. The function or activity is something that the agency does. 2. In order to be a lawful purpose, it is not necessary that the purpose of collecting the information is positively authorised by law. rather, it is sufficient that the purpose of collection is not forbidden by law. 3. Whether the lawful purpose of collecting information is directly related to a function or activity of an agency is a context specific enquiry which will turn on the size and nature of the public sector agency, and the purpose of the collection. 1. The purpose of relating comments, including concerns, about the applicant's performance during the clinical placement to the applicant's university is a lawful purpose as it is not forbidden by law. Further, the purpose was closely related to its function of administering student clinical placements. 2. The respondent argued that the evaluation form was not collected by unlawful means and it did not breach s 8(2) of the PPIPA. In EEH v NSW Self Insurance Corporation [2022] NSWCATAD 361, the Tribunal held that "unlawful means" in the context of s 8(2) "requires that the actual means or method of the collection of the applicant's personal information in question is unlawful," beyond simply being a breach of the collection principles in the PPIPA. The applicant asserts that the respondent undertook a premeditated plan to secretly and unlawfully collect her personal information by taking unauthorised photographs of a hard copy of her evaluation form. However, she has not referred to any legal prohibitions that would render it unlawful for her preceptor to take copies of the evaluation form by this means. Therefore, the Tribunal should be satisfied that the evaluation form was not collected by unlawful means. 3. The respondent stated that the evaluation form was collected directly from the applicant and that it took reasonable steps to make the applicant aware of the matters in s 10 of the PPIPA. In this matter, the applicant was aware that her personal information contained in the evaluation form was being collected by the respondent because she gave her preceptor the document to complete. 4. In Ex B, Mr Henderson annexed a copy of the UTAS Placement Handbook, which clearly states that the evaluation form needs to be completed by both the student and the preceptor and signed by the preceptor. This is also set out in Mr Richer's statement (Ex C). His evidence was not challenged by the applicant. 5. Therefore, the Tribunal should be satisfied that the respondent complied with s 10(a) to (f) and that there is no breach of s 10 of the PPIPA. 6. There are two limbs to considering whether a breach of s 16 has occurred, namely: (1) whether the agency relevantly used a complainant's personal information; and (2) whether the agency failed to take reasonable steps to ensure that the information was relevant, accurate, up to date, complete and not misleading before doing so. 7. The respondent argued that it did not use the applicant's personal information and that the applicant's submissions do not identify any use of that information other than its disclosure to UTAS. Instead, it appears that the applicant's real complaint is about the respondent's disclosure of her personal information to UTAS, by tabling feedback that she alleges was inconsistent with her experiences on her placement. The Tribunal should reject the applicant's submissions regarding use. 8. There are a number of Tribunal decisions that establish that "use" in the PPIPA should not be given a narrow interpretation. "Use" in this context has been described as referring to "the handling of personal information within the collecting agency: NZ v Department of Housing [2005] NSWADT 58 at [69], and it has generally ne considered in the context of an agency using information for its own purposes: Department of Education and Communities v VK [2011] NSWADTAP 67 at [20]; EJE v Commissioner of Fair Trading [2022] NSWCATAD 33 at [40]. 9. In AFC v The Sydney Children's Hospital Specialty Network (Randwick and Westmead) [2012] NSWADT 189 (AFC), the Tribunal held that giving information to an outside agency is not a use of personal information, but is to be considered under the disclosure principles in s 18 of the PPIPA: AFC at [42], citing JD v Department of Health [2005] NSWADT 244 at [38]-[41]. In AFC, the applicant complained about the hospital's preparation of a letter containing his personal information, which it then sent to the Anti-Discrimination Board for the purpose of responding to a complaint made by the applicant's former partner. The Tribunal held that while it could be argued that the hospital's conduct in preparing and sending the letter constituted a use and disclosure of the applicant's personal information, this was an artificial construct, and the reality was that writing and dispatching the letter should be viewed as one course of conduct that fails to be considered as a disclosure. 10. The Appeal Panel approved that reasoning in AIN v Medical Council of New South Wales [2017] NSWCATAP 23 at [81] (AIN). That case related to the respondent's publication on its website of a judgment by the Medical Tribunal concerning the applicant. Although the parties in that matter agreed that this constituted a breach of s 18 of the PPIPA concerning disclosure, the Appeal Panel rejected arguments that the creation and publication of the document constituted an internal use of persona; information. 11. In AIN, the Appeal Panel referred to the decision in VK, which accepted that there might be both a use for the purposes of s 16 and a disclosure for the purposes of s 18 in the one sequence of events, but only where there were separate identifiable internal use and identifiable external disclosure transactions or actions. 12. The respondent argued that the circumstances in AFC and AIN are analogous to this matter. There is no evidence that the respondent made any use of the information contained in the evaluation form or the file note dated 2 February 2023, other than disclosing those documents to UTAS, which is not a use in the relevant sense. 13. There is also no evidence that the respondent made any use of the information contained in the file note dated 8 February 2023, which was not disclosed to UTAS but was created for the respondent's internal records. Use refers to an agency taking some administrative action on the basis of information it holds about an individual, 14. The applicant complains that the use of her personal information contributed to her receiving a "fail" grade in her assessment by UTAS, and involved the creation of impugning records causing severe detriment to the likelihood of her future employment with the respondent. 15. The respondent stated that it took reasonable steps to ensure that the applicant's personal information was accurate. Section 16 of the PPIPA does not create an obligation that the agency must, in every circumstance, ask a person to corroborate the accuracy of information that it holds about the person before the information it used. What constitutes reasonable steps in particular circumstances must be determined not only in the context of the purpose for which the information was to be used, but also in the context of those matters the applicant alleges was not relevant, inaccurate, out of date , incomplete or misleading. 16. The Tribunal has held that there is a higher threshold for taking reasonable steps to ensure accuracy where the information is to be used for a purpose that is adverse to the interests of the person concerned: JD v Director General, NSW Department of Health (No 2) [2004] NSWADT 227 at [66], cited in DQF at [68]. The Tribunal has also held that the applicant has the initial onus of demonstrating that there was a use of information which involved irrelevant, inaccurate, out of date, incomplete or misleading information, and that the onus then shifts to the respondent to show that it took reasonable steps to check the information : DQF at [70]-[71], citing MT v Director General, NSW Department of Education and Training [2004] NSWADT 194 at [185]; and BPF v NSW Ambulance Service [2015] NSWCATAD 39 at [34]. 17. The applicant's materials contain extensive rebuttals of the information contained in the file notes, but she has not contended that any of the information in the evaluation form is inaccurate. The file notes contain a mix of factual observations about the applicant by Miss thorn and opinions expressed about her conduct. In circumstances such as these, the Tribunal has held that the following matters are relevant to determining whether any reasonable steps are required to ensure the accuracy of the information and, if so, the nature of those steps: (1) the potential impact on the privacy and reputation interests of the subject and other possible impacts the information might have if it is wrong or defective in the ways referred to in s 16; (2) how recently the information was collected; (3) the significance of the information in the context; (4) the experience and competence of the author; and (5) whether it was necessary or practical to check back the information with the providers of the information, or with the subject. 18. The Tribunal has also held that when considering if an opinion is accurate within the meaning of s 16, the question will be whether it was genuinely formed and held at the time it was recorded, as an opinion is always subjective. There is no evidence that Miss Thorn's opinions recorded in the file notes dated 2 February 2023 and 8 February 2023 were not genuinely formed and held. Where she felt that she was unable to provide a conclusive or authoritative opinion in relation to a matter, she acknowledged this in the file notes and qualified her opinions accordingly. This is suggestive that Miss Thorn provided an honest account of her opinions and matters she observed during the placement. The comments were also recorded in the context of correcting comments that she previously made about the applicant's performance in completing the evaluation form. The applicant was given the opportunity to provide her own account of her performance on the placement by completing that evaluation form. 19. Further, when the file notes were recorded, the applicant had completed the clinical placement, returned to UTAS and no longer had day-to-day contact with Miss Thorn or any other staff of the respondent. Accordingly the file note dated 2 February 2023 suggested that UTAS re-evaluate the applicant's understanding of certain clinical competencies before it used it to finally determine the applicant's grade. On that basis, the respondent argued that it was reasonable not to contact the applicant to ask her to corroborate Miss Thorn's comments at the time they were recorded in the file note or when it was relayed to UTAS. There is also insufficient evidence for the tribunal to find that the information in the file notes is inaccurate. 20. In relation to disclosure of personal information, the respondent stated that s 18(1) of the PPIPA relevantly provides that, "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 the circumstances in ss 18(1)(a) to (c) apply. Relevantly, those circumstances include: (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body…. If the purpose is conflated with the activity for the purpose of applying the section, then it is probable that something has gone awry with the characterisation of either the purpose or the activity. 1. The respondent argued that the Tribunal should reject the applicant's submission that the photographs of her evaluation form were relevantly disclosed to UTAS. The essence of disclosure under s 18 is making known to a person information that the person to whom the disclosure is made did not previously know: Nasr v State of New South Wales [2007] NSWCA 101 at [127]. The applicant's submissions make it clear that her real complaint is that the respondent disclosed information to UTAS which "impugned" the information in her evaluation form, namely the information contained in the file note dated 2 February 2023. 2. Section 18(1)(b) provides an exception to the prohibition on an agency disclosing an individual's personal information if the individual is individual is reasonably likely to have been aware that information of that kind is usually disclosed to that other person or body. The respondent denies that the disclosure to UTAS was done in contravention of s 18, because the circumstance described in s 18(1)(b) applied. 3. The respondent argued that the tribunal should view this situation like the circumstances in CEU v University of Technology Sydney [2019] NSWCATAD 13, where the Tribunal held that students were aware that the University will share information with clinical placement providers based on a series of documents and interactions to which students are routinely party. Although in this matter, the applicant did not sign an express permission to disclose form, the other policy documents and guidelines were made available to the applicant should be considered to have the same effect. 4. The respondent generally adopted other rulings that were made by the Tribunal during the course of the hearing in relation to jurisdiction to determine some of the applicant's other complaints. 5. The respondent concluded that the correct and preferable decision is for the Tribunal to affirm the finding of both internal reviews, that the respondent did not breach any of the IPPs in the PIPPA and that it should not take any further action in the matter. Respondent's oral submissions 1. Before making oral submissions, Mr Allchurch sought to clarify exactly what written documents the applicant relied upon "as written submissions", because he did not want that to be an appeal point. 2. The Tribunal observed that it had asked the applicant's agent to do this and he had not done it, and unless a document has been specifically referred to in relation to the submissions lodged with the Tribunal, the Tribunal would disregard them. The following exchange occurred: Applicant's agent: Sorry. To that extent the documents on which we rely are the documents referenced in the red folders. If it would assist the Tribunal, what we can do is we can pull out the all the relevant ones. Tribunal: I asked you to do that over the weekend and you did not. Applicant's agent: Yeah, and we didn't have the opportunity. I'm saying to you now that we can pull out the documents that are referenced in these red files and provide them to you as a separate bundle, fully referenced. Tribunal: You've had an opportunity… Is it only the documents in the red bundles. Can I disregard everything else? Yes or no? Applicant's agent: Yes you can. Yes you can. Tribunal: Does that answer your question, Mr Crown? Allchurch: That does thank you, Senior Member. I just really wanted to make that work, so that's clear. Tribunal: But for the record, the only documents that will be considered by this Tribunal in determining this matter are these: 1. In the 2023 proceedings, to the extent that her submissions are not evidence, we have the applicant's final submissions and material in reply dated 1 August 2024; and 2. In the 2024 proceedings, the applicant's material in reply, also filed on 1st August 2024 and in those proceedings, there is a single bundle again titled "applicant' final submissions and materials and reply filed on 1st August". Applicant's agent: Senior Member we're not disregarding the bundles of documents that we've filed. Tribunal: I give up. Allchurch: I think I understand. Tribunal: I give up… Allchurch: What I understand the position to be… Tribunal: I was just told that I could disregard everything that was not in the red bundles. Now you're telling me that that's not the case. Allchurch: The red bundles filed by the applicant do cross reference materials in the documents. I understand what you said. Applicant's agent: They're not standalone documents Senior Member. They are referenced into the documents and we were prepared to provide you with a separate index of documents. We could not pull the documents out today for you, because if we did that because each bundle is separately referenced and page referenced, it would be more confusing to find the references from our red bundles into that new document. So we would have to go away and produce a separate bundle that allows you to have all the documents referenced from the rad documents into the bundles of 10 documents. Allchurch: I apologize for raising the issue. So you remember I wanted to clear on the record what exactly the applicant relied on so I did not want an appeal grounds down the line or the possibility of appeal ground on the basis that you did not refer to some argument that was made or some document that's buried in there. Tribunal: No, I'm glad you did. Normally I'd be relying on direct evidence, and I'm not going down that rabbit hole again. I make the following orders: 1. The applicant is to file and serve a separate bundle of relevant documents within 7 days. 2. The respondent has liberty to apply in the event that any fresh evidence or documentation is produced by the applicant in response to order 1. And I should say, if a document is not referred to in such an index or bundle, it will not be considered. Applicant's agent: Thank you. Tribunal: That being the case, Mr. Crown, would you prefer to wait until you get that bundle of documents and then provide me with some final written submissions? I don't want you to be taken by surprise. Applicant's agent: I can make an obligation to the respondent that any document in that new bundle of documents will come straight out of that document. Allchurch: Yes, on the basis first that you've given liberty to apply and secondly that that's what the bundle is, it's not anything new, it is just material that's being filed that's collated in a fashion that's convenient for you to review, Senior Member. Tribunal: Do you feel you're able to proceed? Allchurch: I think I am, yeah. Tribunal: On those on those grounds, very well. Allchurch: Alright. But yes, as you've noted, there is liberty to apply… Tribunal: There is liberty to apply to address that if the issue arises. Procedural fairness goes both ways. 1. Mr Allchurch argued that the proceedings ultimately boil down to five questions across the two proceedings. 2. In relation to the 2023 proceedings, the questions are: 1. Whether the respondent holds any further information responsive to the s 14 request? 1. This calls for a consideration of whether there have been reasonable searches. The reviewable decision is whether further information is itself held and the relevant authorities are Klaric and Wojciechowska. These decisions explain the basis of the manner in which the issue of reasonable searches is approached and it must be determined by the Tribunal based on of all the information before it, which includes the evidence of Shaun Kelly, Jack Henderson and Ashley Thorn, as well as the documentary material on which the respondent relies. 2. Particular reliance is on Miss Thorn's evidence here about the manner in which paramedics at Tuncurry Station used the IT systems. In essence, that evidence was that paramedics generally talk to people face to face or over the phone and they rarely rely on emails because their work is time precious. Paramedics don't have their own dedicated work computers at Tuncurry Station. They share computers amongst themselves and Miss Thorn estimated that she would send one e-mail a fortnight. So obviously when she was asked to conduct searches of her records for information about this, she remembered that she had sent an e-mail and that was relatively easy for her to find. For completeness, I think she did also say that she had done a search of her e-mail inbox for (FTD's) name. 3. Miss Thorn provided a compelling explanation for why there's comparatively little information in response to the s 14 request and it is plainly relevant to the reasonableness of the searches. She knew where the information would be, so she knew where to look. She didn't have very extensive e-mail records, so she didn't have to undertake a very extensive search. 4. On the topic of Miss Thorn's involvement in the searches, the thrust of the applicant's complaint in written submissions appears to be that these searches conducted are not reasonable because the person undertaking the searches was the same person who took unauthorized photos unlawfully of the evaluation form and transferred them to the respondent's IT systems. That complaint is repeated many times throughout the applicant's submissions in varying forms. But the fact that the applicant has attacked aspects of Miss Thorn's conduct does not mean that her involvement in the search has made them unreasonable. 5. On the contrary, it would have been unreasonable if Miss Thorn had not been asked to do searches, given that she was the person involved in the alleged collection of the information. And indeed, that is the basis on which Miss Thorn was summoned. Miss Thorn did, in fact to produce material in response to the s 14 application, so there is no basis to doubt that she undertook the relevant searches diligently and professionally and that she had no ulterior motive to withhold such information. There is no evidentiary foundation for such conclusions. 6. Miss Thorn also gave a cogent explanation for why she produced two additional photos at a later point in time and not in response to the original request. And nothing that was put to Miss Thorn, and nothing in her evidence would justify finding that she deliberately withheld material so as to cast doubt on the reasonableness of the searches. 7. The Tribunal will be satisfied that the respondent holds no further information responsive to the application under s 14 and that it has conducted reasonable searches. If the Tribunal considers that there are further searches that the respondent should take, of course it can identify them and searches, but nothing has been raised that I think would justify such an order. 2. Whether there has been a matter of "excessive delay". 1. The premise of the applicant's case appears to be that the delay was because the responded incorrectly and recklessly applied the public interest test in the GIPA Act. However, as matter of law, that cannot amount to an excessive delay. 2. In Ritson at [50], Basten J said that whether that decision being a decision not to provide access to information is right or wrong does not engage the test of excessive delay merely because documents are not provided and the person considers that they should have been. That is a complete answer to the applicant's complaint about the delay caused by the original decision on 24 April 2023. 3. The applicant also refers to the earlier internal review conducted by John McDonnell of the Crown Solicitor's Office and appears to suggest that this created a proactive obligation on the respondents to revisit its original decision in this matter. The applicant cited no authority for that proposition and the Tribunal observed that it was not aware of any such authority. 4. The applicant's proposition is at odds with the structure of the PIPPA, which envisages a series of internal reviews, followed by administrative review and if an individual wants to challenge a decision, they can do so, and if they receive information in another internal review which makes them think that the previous decision is wrong, they can raise that on that occasion. However, for there to be an ongoing obligation to go back to earlier decisions in light of later decisions would be contrary to the text of s 14, which is enlivened at the request of the individual to whom it relates, and it would be entirely impractical for agencies to keep track of all of those matters. 5. It's also important when considering question of "excessive delay" to step back and look at the timeline of events as a whole. The longest delay in that sequence of events was the applicant waiting nearly five months to seek an internal review. However, the circumstances are such that there's no basis to conclude there was an "excessive delay" on the part of the respondent. When you look at the time period as a whole, the respondent made the decisions in a timely fashion and any delay was attributable to the applicant. 6. The Tribunal heard about the summons issued to Miss Thorn for her to produce photos from her iPhone. That summons was issued on 14 June 2024. The documents were produced and access was granted on 12 July 2024. In any event, Miss Thorn gave cogent explanations for why she didn't produce those materials at an earlier point in time and the Tribunal would be satisfied that the respondent produced everything that's responsive to the s 14 request and there has been no excessive delay. 7. In relation to the 2024, the relevant questions are: 3. Section 8 of the PPIPA – was the information collected for lawful purposes? 1. The respondent conceded that it would be preferable if Miss Thorn had included her genuine concerns about (FTD's) performance in the original evaluation form. However, it is difficult to see how this would have led to a different result for (FTD) at the University of Tasmania, and that is a point which assumes some significance. If the genuine feedback had been included on the first occasion, the applicant would likely still have failed the subject. 2. In Miss Thorn's evidence and in cross-examination of the applicant, the respondent explored the circumstances in which they completed the evaluation form on the last day of the clinical placement and Miss Thorn gave candid and reasonable explanations of why she felt that she could not give her honest opinion in the original evaluation form. She said that she felt pressured both by the applicant's presence and by the broader circumstances of it being the last day of the placement and that there were many things that officers must do. 3. The Tribunal observed that it is a test of reasonableness and that actual intention notwithstanding, the question is whether or not the manner in which it was done caused the preceptor to feel pressured. 4. The respondent also cross-examined (FTD) regarding policy documents, which made it clear that she should not leave her evaluation form to the last day of her placement and that she should give her preceptor enough time to provide considered feedback. He didn't go to every document that supports that conclusion and there are other documents which would reiterate the points being made. Therefore, it should not have come as a surprise that Miss Thorn did not take the preferable course about expressing her genuine concerns in the original evaluation form. She did not have the opportunity to do so, nor should it come as a surprise that when she had the opportunity to reflect in an environment where she felt comfortable to do so, she had second thoughts about her evaluation of (FTD). Second thoughts are sometimes better than first thoughts. 5. In any event, the Tribunal is not assessing whether it would be preferable if Miss Thorn had acted in a different way, nor is it conducting a merit review of the evaluation form. It is assessing whether the respondent breached the PPIPA. 6. The respondent put it to the applicant that it would be important for the respondent to retain a copy of the evaluation form to preserve the integrity of the assessment process. The respondent argued that this is true regardless of whether the student consents to it that and perhaps it might even be more true if the student opposed to that course. But the force of that proposition is self-evident, regardless of whether or not the applicant accepted it. 7. The respondent also took the applicant to events about a previous placement involving Ms Casey, which underlines the importance the reasonableness of the respondent retaining a copy of the completed evaluation form. 4. Section 9 of the PPIPA – Was the information collected directly from an individual? 1. The respondent argued that it did not collect the file notes. This was conceded by the applicant. Therefore, the only information that the respondent "collected" was that contained in the evaluation forms that the applicant filled out. The collection of that information was for a plainly lawful purpose of providing feedback on her clinical placement. 2. The respondent understood that the applicant conceded that the collection occurred by a lawful means, as it was collected was directly from the applicant in accordance with s 9 of the PPIPA. It argued that s 9 applies to information and not to its form or format. The fact that the applicant (was not present when Miss Thorn took photos of the evaluation form is irrelevant. 3. The information does not have to be directly collected from her, as she provided the information when she gave the form to Miss Thorn for completion. He put to the applicant that the document was jointly authored by Miss Thorn and herself and that it was entirely appropriate for the respondent to retain a copy. Further, there is also the unchallenged evidence of Mr Richer at para 48 of Ex C, that it would be reasonable for the preceptor to retain a copy of an evaluation form. 5. Section 10 of the PPIPA – What are the requirements when collecting personal information? 1. The respondent submitsed that it took reasonable steps to ensure the applicant was aware of the relevant matters and the applicant was actually or should have been aware of those matters. The applicant provided her evaluation form to Miss Thorn for completion, and she would have been aware that the information was being collected for the purposes of her evaluation and that it would have been shared, or that it might be shared, with the University of Tasmania. 2. The supply of the information was voluntary as a matter of law as it was necessarily required for the completion of applicant's clinical placement and she was obviously aware of the consequences of failing to provide the information, namely that she would not complete her course. 3. The respondent argued that the applicant knew that the respondent was collecting the information, even if she didn't know that photos were being taken. She had provided the information to the respondent and that she knew the name and address of the agency that was collecting it cannot be seriously disputed. Therefore, she was obviously aware of the s 10 matters and the respondent took reasonable steps in context to make her aware of those matters. 6. Section 16 of the PPIPA – Did the agency check the accuracy of the information before use? 1. The applicant complains that the information in the file notes dated 2 February 2024 and 9 February 2024, respectively, were not fit for purpose and that this amounts to a breach of s 16 of the PIPPA. 2. However, the Tribunal is not conducting a merits review of the evaluation form and s 16 and it is not a vehicle for doing so. The creation of the file notes is not in and of itself a "use" for the purposes of s 16. In any event, the applicant's real complaint appears to relate to the disclosure of the information to UTAS, rather than any of the "use" of the information internally by the respondent. The respondent's written submissions again make it clear that any subsequent use of the information by UTAS is not a comment of the respondent's, and it is not before the Tribunal. 3. Miss Thorn was quite clear that she did not believe she was marking the applicant for her University degree and that was not something that she felt that she could do. And it's clear in the documents that the responsibility for marking students falls to the University and not the respondent. 4. In relation to this issue, the second statement of Jack Henderson (Ex B) attaches a copy of the Student Placement Agreement and cll 5.13 and 5.14 make it clear that it is ultimately the University that's responsible for the student's assessment. Even if there was a use of the information by the respondent, which there was not, the Tribunal would still not find there was a breach of s 16 of the PPIPA. 5. In any event, s 16 does not impose a requirement of absolute accuracy, but rather requires an agency to take reasonable steps to ensure that the information is relevant, accurate up to date, complete and not misleading before using it. The fundamental point here is that the file notes contain the opinions of Miss Thorn, that's an inherently subjective matter, and it's generally accepted that expressions of opinion are not inaccurate. 6. In cross-examination of Miss Thorn, the applicant's agent took her to her file note, in which she wrote, "I also don't believe I have all the skills to be the most effective preceptor for (FTD), as I haven't had additional training to accurately evaluate her clinically", and the respondent also addressed this with her in re-examination. 7. The respondent argued that the Tribunal would not read this sentence as an admission that the file note is inaccurate for the purposes of s 16 of the PPIPA. The word "accurate" is used and there is no doubt that this is Miss Thorn's genuine opinion, and her comment that she could not accurately evaluate the applicant should not be read as a caveat on the limits of her ability to provide a definitive opinion. It is not an admission that the caveat expressed in her opinion meant that the opinion was wrong. 8. Miss Thorn gave evidence about the difficulties in assessing students on clinical placement in what is a real-life environment, with all of the challenges that brings, you know the fact that there may not be a stable patient or a safe environment in which to assess the student. And the focus has to be on the patients first, not on evaluating the student. If anything, this acknowledgement of these limitations on her ability to provide a definitive opinion is to Miss Thorn's credit. It is also important to consider the counterfactual here. 9. What if Miss Thorn had not provided her genuine opinion after having the opportunity to reflect and let the original evaluation form stand? The consequence of this would be terrible. The University of Tasmania might then have passed a student who, in the genuine opinion of her preceptor, did not meet expectations. And that's a very serious proposition given that paramedics are responsible for saving people's lives. This is less serious, but more relevant for present purposes as a matter of the PPIPA, it would mean that the original evaluation form would be allowed to stand in circumstances where it no longer reflected Miss Thorn's genuine opinion. Is that information which perhaps then might have been inaccurate or not up to date of completion? That complaint has not been made in this matter. 10. Further, the point is that in updating the information after having the opportunity to reflect, Miss Thorn was taking appropriate action to ensure the accuracy of the information in question. What the applicant is trying to do by reinstating the original evaluation form or setting aside/challenging the accuracy of the subsequent file notes, is to selectively invoke the IPPs, to get rid of the negative evaluation, and that's not what the IPPs are for. 11. In any event, the Tribunal is not called upon to evaluate (FTD's) performance on her clinical placement. It's only whether there's been a breach of the IPPs. In relation to this issue, there was no use of the information and even if there was use of the information, the respondent took reasonable steps to ensure the information was accurate. Miss Thorn's later opinion was genuinely held, and this resulted from more careful deliberation than the original evaluation form. 7. Section 18 of the PPIPA – What are the limits on disclosure of personal information? 1. The respondent stated that it initially understood the applicant's complaints to relate to the disclosure of the negative feedback in the file note dated 2 February 2023, and it prepared its written submissions proceeded on that basis. 2. However, during the hearing on 16 August 2024, the applicant's agent stated that he accepts that the respondent may communicate with UTAS about the applicant's performance on her clinical placement. Therefore the complaint is only about the disclosure of the photos taken by Miss Thorn (which were attached to the file note). 3. These are photos of the original evaluation form, which was provided to UTAS by the applicant in accordance with the requirements of her assessment. 4. The respondent relied upon the decision in Nasr, and it argued that there was no "disclosure". The form of the information, being photos taken by Miss Thorn rather than a hard copy or a scanned copy of the evaluation form, is irrelevant, because the PIPPA applies to information and not to the documents in which the information is recorded. Even if there was a "disclosure" that somehow engaged s 18 of PPIPA, s 18(1)(b) would clearly apply. 5. While the applicant is clearly aggrieved in a number of other ways, those complaints do not arise under the PIPPA. Complaints about breach of contract between the university and the respondent, complaints about whether the respondent's officers complied with applicable policies, complaints about whether (FTD) received feedback etc, are not complaints that arise under the PPIPA. The Tribunal has no jurisdiction to consider them. Applicant's submissions in reply 1. In reply, the applicant's agent sought to raise the following points. 2. The applicant contended that the alternative evaluation document had a "use internally" by the respondent. It wasn't a new disclosure because what they did when combining the photographs with the annotations of below expectations onto those photographs, was to create a separate alternative evaluation document and they basically created a document that said that the applicant was now below expectations. That is an assessment of the applicant and that occurred within the four walls of the respondent and then that document was disclosed by it. So the applicant states that there has been a use of that document before disclosure. 3. The Tribunal noted that this did not arise from anything that the respondent had said, and that this was an opportunity to respond to what the Crown Solicitor had said in oral submissions. This was not an opportunity for the applicant to raise something new. 4. The applicant's agent replied that he thought that the Crown Solicitor had raised that issue about "disclosure". The Tribunal noted that he was addressing the legal definition of "disclosure", which is that there cannot be disclosure of information to an agency that has already received it. That is a legal definition of disclosure. 5. The applicant's agent argued that the form that the applicant disclosed directly to the University, as she is supposed to do, was different to the document that the respondent disclosed to the University on 2nd February 2023. 6. The Tribunal repeated its prior ruling that it is not considering the form, because the PPIPA is concerned with information in the document and not its form. The following exchange occurred: Applicant's agent: No, we're saying the document includes information on the applicant that says that she was below expectations. That's information, an opinion about the applicant, which is personal information. Tribunal: That is information contains personal information of the assessor that was submitted to the UTAS. Applicant's agent: It is an opinion of the applicant. Tribunal: It is not the opinion of the applicant. Applicant's agent: We say it is an opinion of the applicant's performance, and therefore it's her personal information. Tribunal: No, you're talking about the decision that was made by UTAS, which is not a party to these proceedings. Applicant's agent: No, we're not saying that at all. We're saying that Ambulance annotated the words "below expectations" on documents that had nothing to with the university. Tribunal: It obviously does not matter what I say, so I'm just going let you go. Just say what you want to say. You've got 10 minutes. I don't agree that any of this is accurate or relevant, but go ahead. Applicant's agent: It's in my submissions. Tribunal: Well, that doesn't make it accurate or relevant. Applicant's agent: But it is referenced into the bundles that we've produced. Tribunal: And it does not satisfy the legal definition. But go ahead. Applicant's agent: The other proposition would raise is that that the proposition was made by the respondent that the information was not used anyway, it was just disclosed, but we would say… Tribunal: It was addressing the legal definitions of "use" and "disclosure" under the PPIPA, which you haven't done, by the way. Applicant's agent: We would say that the final note of 8th of February was "use". In fact, Ambulance have admitted that in the decision of Shaun Kelly, where he says "we've used the document for the purposes of deliberations regarding the applicant's employment with NSW Ambulance". Tribunal: And I am not here to deal with an employment dispute. Applicant's agent: No, we're dealing with the word "use" here, he says…. Tribunal: We're dealing with the word "use" under the PPIPA. Applicant's agent: And that's our proposition, he says… on page 16, he talks about "use" of information. Tribunal: The complaint before this Tribunal is in relation to the assessment that was submitted to the University of Tasmania. Applicant's agent It also… Tribunal: If you want to now bring proceedings against the Ambulance Service for not employing (FTD) based on that assessment… Applicant's agent: No, no, no, no. You're misunderstanding me, Senior Member. Tribunal: No, you're not communicating with me properly. You haven't raised a case under s 17, which is use of personal information, by the way. You are relying on s 18, which is "limits of disclosure". The point made by the respondent is there cannot be disclosure at law of information that is already in the possession of the recipient. Applicant's agent: Well to that extent we would say that even though the applicant is a layperson and not... Tribunal: We're not talking about the applicant as a layperson, we're talking about the Ambulance Service transmitting that further information to University of Tasmania. That is the disclosure allegedly, but if it already has the information in the photographs - you told me that your only concern was the photographs and not file note. Applicant's agent: We're talking the merged document. Tribunal: No, you said it's the photographs, not the file note. Applicant's agent: I'd refer you to our submissions. Tribunal: Well, I'm referring to what you said to me a little while ago in your oral submissions, where you specifically made that concession and all the respondent is saying there is that at law, there cannot be disclosure for the purposes of s 18 where the information is already in the possession of the recipient. In the photos were the photos that were taken of the form on the last day of the assessment. Is there anything else? Applicant's agent: I don't want to say something just in case I'm cut off, Senior Member. Tribunal: Taking that attitude is not going to assist you. I'm trying to tell you what the law says. You don't want to hear what the I say about the law. Applicant's agent: I haven't said that. Tribunal: Well, that is the that is very much what I'm getting at this end, because you just keep ignoring what I've said and you just repeat yourself and repeat yourself and repeat yourself. Is there anything else arising from the oral submissions put by the Crown Solicitor that you wish to respond to? Applicant's agent: We would say that the final note of 8th February by Ian Dwyer was a "use" because Ambulance have actually conceded that in their... Tribunal: How is that part of this case? Applicant's agent: Well, they concede it. Can't I… Tribunal: They concede that they used it in respect of an employment matter. I'm not dealing with an employment matter. I'm dealing with a privacy dispute. Applicant's agent: No, they made that concession in the context of doing a notice of decision in respect of the applicant's request for information. To that extent, they're saying some of the documents falling within the scope of the application contain information that has been used in a deliberation of NSW Ambulance to determine the appropriateness of actions of a person and the impact of such person have on the offer of employment. Tribunal: I am not allowing you to raise that at this late stage of the proceedings. Applicant's agent: It's within my submissions. Tribunal: Well, it may be in your submissions, but it should have been raised in evidence and it wasn't. Applicant's agent: We tried. We're going to the… Tribunal: Do not go there. Applicant's agent: We were going do that today. Tribunal: Do not go there. You had every opportunity to present your case in a proper manner. I've given you every liberty that I can within the bounds of procedural fairness, and you just keep coming back at me and poking me. And I'm not going to have it. Is there anything else arising from what has been said by the Crown Solicitor in oral submissions you wish to respond to? Applicant's agent: Just let me confer my notes Senior Member. Tribunal: You've got five minutes. 1. Mr Allchurch noted that to the extent that the issue arises about whether that was a "use", it is addressed in the respondent's written submissions at para 190. 2. In response, the Tribunal stated that it did not see how it's relevant to this dispute, considering that that matter had been run on the basis of the evaluation and of the clinical placement. The following exchange then occurred: Applicant's agent: Well, it seems as it is relevant if the if the respondent is replying to the issue. Wouldn't that be a reasonable presumption Senior Member? Tribunal: Reasonable presumption of what? Applicant's agent: If the respondent is taking a position on a submission… Tribunal: You know what? You just keep talking and when you're when you're prepared to actually stop and let me speak without butting in…. Applicant's agent: Sorry, Senior Member. Applicant's agent: You wave at me and then I'll say what I need to say. And then I'll repeat my ruling that this whole complaint has been brought in relation to the assessment form at the completion of the clinical placement. I am now not going to go down a rabbit hole of what the respondent may or may not have done with information in its possession in response to an application for employment that may or may not have been lodged by your client. Applicant's agent: No, we're not raising that proposition. Tribunal: Then it's not relevant. Can we move on, please? Applicant's agent: We are raising the proposition that they raised it in spite of making an application... Tribunal: OK. So you're just going to totally ignore my ruling. You are totally ignoring my ruling. Can we move on, please? Do you have anything else to say in relation to what the Crown Solicitor has said. Applicant's agent: No, no, I'm just correcting the record. Tribunal: I gave you five minutes and you just started parroting back at me. I have made my ruling. Move on. 1. The applicant's agent stated that the last point is that the respondent talked about the fact that this was Miss Thorn's file note and an opinion and therefore it can't be inaccurate. 2. The Tribunal replied that this is the law - it can't be inaccurate. However, the applicant's agent rejected that and the following exchanges occurred: Applicant's agent: Yeah, it can't be inaccurate, but the only thing we would add to that is that, and I have read cases but I can't quote you the cases, but some of the cases talk about the consequences of an item of personal information, if it has a high consequence to a person, that there needs to be a higher regard for the reasonable steps that need to be taken in relation to that particular item. We would say the consequences for the applicant were failing the last course in her degree, which meant she didn't get her degree, which means she couldn't be employed as a paramedic. On the basis of that consequence to the applicant, we would that reasonable steps were not taken in this regard. Tribunal: The consequence to the applicant? Yes, I understand the consequence to the applicant. That, however, does not negate the fact that the file note prepared by Miss Thorn contained her own personal opinion. And at law, that personal opinion cannot be inaccurate. So if you're raising that in the context of s 16, which is what I understood you be raising it for, at law the proposition cannot succeed. Applicant's agent: Senior member. I can't cite the case to you, but I have read a case that goes to that very point about opinions and still raise this issue about the consequences. Tribunal: In the case of the privacy legislation? Applicant's agent: Yes, yes, I have. Tribunal: I've never, never heard of a case like that. Is there Anything else? Applicant's agent: No, that is it Senior Member. Thank you. Decision Reserved 1. The Tribunal stated that subject to the orders made earlier about the filing and service of bundle of relevant documents, and granting the respondent liberty to apply in the event that anything fresh arises, and that if a document is not so referred to or indexed it will not be considered, its decision is reserved. Legal Principles 1. The Tribunal's review jurisdiction in these proceedings is the alleged conduct and contravention by the respondent of IPPs pursuant to ss 52(1)(a) and 55(1)(a) of the PPIPA Act. 2. Section 52(1)(a) provides: Application of Part (1) This Part applies to the following conduct— (a) the contravention by a public sector agency of an information protection principle that applies to the agency, 1. The Tribunal's role ''is to decide what the correct and preferable decision is having regard to the material then before it": s 63(1) of the Administrative Decisions Review Act 1997 (ADR Act). 2. In the context of the PPIPA, ''decision'' refers to the conduct in which the agency is alleged to have engaged and which is the subject of a request for internal review: ADR Act, s 7. 3. Section 55(1) of the PPIPA provides: Administrative review of conduct by Tribunal (1) If a person who has made an application for internal review under section 53 is not satisfied with— (a) the findings of the review, or (b) the action taken by the public sector agency in relation to the application, the person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct that was the subject of the application under section 53. (1A) A person (the applicant) who is aggrieved by the conduct of a Minister (or a Minister's personal staff) constituting a contravention of section 15 (Alteration of personal information) may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct. (2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders— (a) subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct, (b) an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice, (c) an order requiring the performance of an information protection principle or a privacy code of practice, (d) an order requiring personal information that has been disclosed to be corrected by the public sector agency, (e) an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant, (f) an order requiring the public sector agency not to disclose personal information contained in a public register. 1. A public sector agency's "conduct" for the purposes of ss 52 and 55 of the PPIPA includes any accrual or alleged contravention of the IPPs that apply to the agency: see s 52(1)-(2). The IPPs are set out in ss 8 to 19 of the PPPA and apply to a public sector agency: see s 20(1). 2. A "public sector agency" includes a "statutory body representing the crown": see s 3(1). The respondent is a statutory body representing the Crown, which is established under the Ambulance Services Act 1990 (NSW): see s 4 of that Act. Therefore, for the purposes of the PPIPA, the IPPs apply to the respondent. 3. Section 4 of the PPIPA defines ''personal information'' as follows: (1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. … 1. The applicant alleges that the respondent breached the IPPs found in ss 8 to 11 of the PPIP Act. These IPPs impose a number of obligations on public sector agencies in relation to "collection" of personal information. 2. Section 8 provides: Collection of personal information for lawful purposes (1) A public sector agency must not collect personal information unless— (a) the information is collected for a lawful purpose that is directly related to a function or activity of the agency, and (b) the collection of the information is reasonably necessary for that purpose. (2) A public sector agency must not collect personal information by any unlawful means. 1. Section 9 provides: Collection of personal information directly from individual A public sector agency must, in collecting personal information, collect the information directly from the individual to whom the information relates unless— (a) the individual has authorised collection of the information from someone else, or (b) in the case of information relating to a person who is under the age of 16 years—the information has been provided by a parent or guardian of the person. 1. Section 10 sets out what the applicant has described as an agency's "awareness obligations" when collecting personal information from an individual. It provides: Requirements when collecting personal information If a public sector agency collects personal information from an individual, the agency must take such steps as are reasonable in the circumstances to ensure that, before the information is collected or as soon as practicable after collection, the individual to whom the information relates is made aware of the following— (a) the fact that the information is being collected, (b) the purposes for which the information is being collected, (c) the intended recipients of the information, (d) whether the supply of the information by the individual is required by law or is voluntary, and any consequences for the individual if the information (or any part of it) is not provided, (e) the existence of any right of access to, and correction of, the information, (f) the name and address of the agency that is collecting the information and the agency that is to hold the information. 1. Section 14 of the PPIPA provides: Access to personal information held by agencies A public sector agency that holds personal information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information. 1. Section 16 of the PPIPA provides: Agency must check accuracy of personal information before use A public sector agency that holds personal information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading. 1. Section 18 of the PPIPA provides: Limits on disclosure of personal information (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 (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it. Consideration 1. In my view, the respondent's written submissions accurately recite the legal principles and caselaw that applies to the complaints raised by the applicant in this matter. 2. I have applied the caselaw to the facts as follows. 3. The Tribunal's jurisdiction in these proceedings is limited to review of conduct that was the subject of the internal review application, such that "the Tribunal cannot review any conduct that was not the subject of the application to the agency": Department of Education and Training v GA (No. 3) [2004] NSWADTAP 50 at [7]; see also CWA v NSW Department of Education [2017] NSWCATAD 287 at [14] and the cases cited therein. 4. It is "a fundamental premise of the Act that the agency first be given an opportunity to review the conduct": OD v Department of Education and Training (GD) [2005] NSWADTAP 74 at [13]. This was confirmed and reiterated to the Applicant in the Tribunal's decision of EJE v Service NSW and Commissioner for Fair Trading [2021] NSWCATAD 62. 5. In this matter, the applicant alleged that the respondent had not complied with s 14 of the PPIPA because: 1. It continues to hold personal information that it has not provided to her in response to her access request, because it has not conducted reasonable searches for that information; and 2. To the extent that that it had provided her with personal information that was sought in her access request, It did not with excessive delay, caused by the misapplication of "the public interest test" in its initial decision on 24 April 2023, and its failure to release unredacted versions of the emails that she sought with its internal review decision on 14 November 2023. 1. The respondent argued that the Tribunal should not find that the respondent breached s 14 of the PPIPA on these grounds. 2. I am satisfied that the evidence before me overwhelmingly supports a finding that the respondent did not breach s 14 of the PIPPA. 3. The evidence before me supports a finding that all of the personal information requested that the applicant requested in her access request has been provided to her. 4. There is no evidence before me that supports the applicant's allegation that the respondent continues to hold personal information that was not provided to her in response to her access request. 5. I am satisfied that respondent conducted reasonable searches in order to locate the personal information that was provided to her. 6. In relation to the allegation of excessive delay, I am satisfied that the applicant's contention that s 14 of the PPIPA confers a perpetual obligation upon an agency to review previous decisions, is misconceived. 7. In this matter, the applicant contended that Mr Kelly should have been aware that Mr McDonald had made a determination in relation to a different access application that she made, to the effect that the public interest test under s 14(2) of the GIPA Act did not apply to access requests under s 14 of the PPIPA. 8. In my view, that contention is contrary to the legislative framework, which assumes a scheme of internal review, followed by possible external review, in which the review process is driven by an applicant requesting a review. I am satisfied that the applicant's contention is contrary to the legislation and would be unworkable in practice. 9. I accept the respondent's submission, based on the chronology in this matter, that the longest delay was that between the issue of Mr Kelly's decision in April 2023 and the applicant lodging her request for internal review in late 2023. I am satisfied that there was no excessive delay in the respondent's determinations of the access request and the request for internal review. 10. In relation to the "collection" of personal information, I accept the respondent's submissions that it is well established that ss 8 to 11 of the PPIPA do not apply to the internal movement of personal information about an individual within an agency, or to the process of creating records of internal meetings or discussions which contain personal information about an individual. 11. Similarly, when an agency employee reduces to writing an opinion that they hold mentally (including an opinion about another person that amounts to "personal information" of that person, there is no collection of personal information: AFP. Once internal records have been created, the IPPs in the PPIPA relating to use and disclosure will apply to their contents. 12. However, the Tribunal has said that it is "artificial" to treat such internal recording processes as being a collection of personal information to which the IPPs on collection apply: CBL. 13. In this matter, Miss Thorn created the file note dated 2 February 2023 and it recorded her observations of the applicant's conduct during her clinical placement for the purposes of relaying those observations to the UTAS. The file note dated 8 February 2023 was created by Inspector Dwyer and it recorded a further discussion with Miss Thorn about her concerns about the applicant's conduct. Both documents record the respondent's observations of the applicant's conduct and the contents of internal discussions about the applicant. I am satisfied that it would be artificial to treat the creation of these records as a collection of the two file notes. 14. I am also satisfied that the respondent did not collect the information in the evaluation form that was provided by Miss Thorn. She recorded handwritten comments about the applicant's performance on the evaluation form and retained a copy of those comments by photographing them. This did not constitute a collection of the applicant's personal information. 15. I am satisfied that it would be artificial to characterise the process of Miss Thorn reducing her own opinions to writing as a collection of the applicant's personal information. The fact that Miss Thorn kept an electronic record of her opinions by taking photographs of the form she had just completed does not change this. 16. The respondent argued that the evaluation form was collected for a "lawful purpose" directly related to a function or activity of the respondent: s 8(1). 17. In Norkin, the Court of Appeal considered the operation of s 8(1) of the PPIPA. The Court determined that there is a contrast between the purpose for which the information is collected, and the function or activity of the agency. The purpose is the end, or the objective or the goal in the furtherance of which the information is collected. There may be more than one purpose. The function or activity is something that the agency does. 18. I accept that in order to be a lawful purpose, it is not necessary that the purpose of collecting the information is positively authorised by law. It is sufficient that the purpose of collection is not forbidden by law. 19. In this matter, the purpose of relating comments, including concerns, about the applicant's performance during the clinical placement to the applicant's university, is a lawful purpose as it is not forbidden by law. Further, it was closely related to the respondent's function of administering student clinical placements. 20. I accept the respondent's argument that the evaluation form was not collected by unlawful means and it did not breach s 8(2) of the PPIPA. In EEH, the Tribunal held that "unlawful means" in the context of s 8(2) "requires that the actual means or method of the collection of the applicant's personal information in question is unlawful," beyond simply being a breach of the collection principles in the PPIPA. 21. While the applicant alleged that the respondent undertook a premeditated plan to secretly and unlawfully collect her personal information by taking unauthorised photographs of a hard copy of her evaluation form, she has not referred to any legal prohibitions that would render it unlawful for her preceptor to take copies of the evaluation form by that means. 22. I also accept the respondent's argument that the evaluation form was collected directly from the applicant and that it took reasonable steps to make the applicant aware of the matters in s 10 of the PPIPA. In this matter, the applicant was aware that her personal information contained in the evaluation form was being collected by the respondent because she gave her preceptor the document to complete. 23. In Ex B, Mr Henderson annexed a copy of the UTAS Placement Handbook, which clearly states that the evaluation form needs to be completed by both the student and the preceptor and signed by the preceptor. This is also set out in Mr Richer's statement (Ex C) and the applicant did not challenge his evidence. 24. I am therefore satisfied that the respondent complied with s 10(a) to (f) and that there is no breach of s 10 of the PPIPA. 25. In relation to the alleged breach of s 16 of the PPIPA, it is necessary to consider: 1. Whether the respondent relevantly used the applicant's personal information; and 2. Whether it failed to take reasonable steps to ensure that the information was relevant, accurate, up to date, complete and not misleading before doing so. 1. I accept the respondent's argument that it did not use the applicant's personal information, in so far as it concern disclosing the information to UTAS. It appears that the applicant's real complaint is about the respondent's disclosure of her personal information to UTAS, by tabling feedback that she alleges was inconsistent with her experiences on her placement. 2. I do not accept the applicant's contention regarding use of the information with respect to UTAS. While I note that the applicant also asserted that the respondent used her personal information in deciding not to offer her employment, I am satisfied that this Tribunal lacks jurisdiction to consider an employment dispute between the applicant and the respondent. 3. The Tribunal has determined that "use" in the context of the PPIPA refers to "the handling of personal information within the collecting agency." In AFC, the Tribunal held that giving information to an outside agency is not a use of personal information, but is to be considered under the disclosure principles in s 18 of the PPIPA. 4. The Appeal Panel approved this reasoning in AIN, in relation to a matter where the respondent published on its website a That case related to the respondent's publication on its website of a judgment by the Medical Tribunal concerning the applicant. Although the parties in that matter agreed that this constituted a breach of s 18 of the PPIPA concerning "disclosure", the Appeal Panel rejected arguments that the creation and publication of the document constituted an internal use of personal information. 5. In AIN, the Appeal Panel referred to the decision in VK, which accepted that there might be both a use for the purposes of s 16 and a disclosure for the purposes of s 18 in the one sequence of events, but only where there were separate identifiable internal use and identifiable external disclosure transactions or actions. 6. I accept the respondent's argument that the circumstances in AFC and AIN are analogous to this matter. There is no evidence that the respondent made any use of the information contained in the evaluation form or the file note dated 2 February 2023, other than disclosing those documents to UTAS, which is not a use in the relevant sense. 7. I also accept that there is no evidence that the respondent made any use of the information contained in the file note dated 8 February 2023, which was not disclosed to UTAS but was created for the respondent's internal records. Use refers to an agency taking some administrative action on the basis of information it holds about an individual, 8. The applicant complains that the use of her personal information contributed to her receiving a "fail" grade in her assessment by UTAS, and involved the creation of impugning records causing severe detriment to the likelihood of her future employment with the respondent. However, I accept that the respondent reasonable steps to ensure that the applicant's personal information was accurate. 9. Section 16 of the PPIPA does not create an obligation that the agency must, in every circumstance, ask a person to corroborate the accuracy of information that it holds about the person before the information it used. What constitutes reasonable steps in particular circumstances must be determined not only in the context of the purpose for which the information was to be used, but also in the context of those matters the applicant alleges was not relevant, inaccurate, out of date , incomplete or misleading. 10. The Tribunal has held that the applicant has the initial onus of demonstrating that there was a use of information which involved irrelevant, inaccurate, out of date, incomplete or misleading information, and that the onus then shifts to the respondent to show that it took reasonable steps to check the information : DQF; MT v Director General, NSW Department of Education and Training; and BPF v NSW Ambulance Service. 11. The applicant's materials contain extensive rebuttals of the information contained in the file notes, but she has not contended that any of the information in the evaluation form is inaccurate. The file notes contain a mix of factual observations about the applicant by Miss Thorn and opinions expressed about her conduct. 12. I accept the respondent's submissions that the following matters are relevant to determining whether any reasonable steps are required to ensure the accuracy of the information and, if so, the nature of those steps: 1. the potential impact on the privacy and reputation interests of the subject and other possible impacts the information might have if it is wrong or defective in the ways referred to in s 16; 2. how recently the information was collected; (3) the significance of the information in the context; 3. the experience and competence of the author; and 4. whether it was necessary or practical to check back the information with the providers of the information, or with the subject. 1. The I am satisfied that Miss Thorn's opinion was genuinely formed and held at the time it was recorded, as an opinion is always subjective. There is no evidence before me that her opinions recorded in the file notes dated 2 February 2023 and 8 February 2023 were not genuinely formed and held. She acknowledged her limitations and qualified her opinions, where appropriate. For this reason, I am satisfied that she provided an honest account of her opinions and matters she observed during the placement. The comments were also recorded in the context of correcting comments that she previously made about the applicant's performance in completing the evaluation form. The applicant was given the opportunity to provide her own account of her performance on the placement by completing that evaluation form. 2. In any event, the file notes were recorded after the applicant completed the clinical placement, returned to UTAS and no longer had day-to-day contact with Miss Thorn or any other staff of the respondent. I accept that it was reasonable for the respondent not to contact the applicant to ask her to corroborate Miss Thorn's comments when they were recorded in the file note or when it was relayed to UTAS. There is also insufficient evidence for the Tribunal to find that the information in the file notes is inaccurate. 3. As to "disclosure" of personal information, the respondent argued that the Tribunal should reject the applicant's submission that the photographs of her evaluation form were relevantly "" to UTAS. The essence of disclosure under s 18 is making known to a person information that the person to whom the disclosure is made did not previously know: Nasr. Based on the applicant's submissions, it is clear that her real complaint is that the respondent disclosed information to UTAS which "impugned" the information in her evaluation form, namely the information contained in the file note dated 2 February 2023. 4. Section 18(1)(b) provides an exception to the prohibition on an agency disclosing an individual's personal information if the individual is individual is reasonably likely to have been aware that information of that kind is usually disclosed to that other person or body. The respondent denies that the disclosure to UTAS was done in contravention of s 18, because s 18(1)(b) applied. 5. In CEU, the Tribunal held that students were aware that the University will share information with clinical placement providers based on a series of documents and interactions to which students are routinely party. Although in this matter, the applicant did not sign an express permission to disclose form, the other policy documents and guidelines were made available to the applicant should be considered to have the same effect. 6. I otherwise confirm the rulings that I made during the course of hearing to the effect that the Tribunal lacked jurisdiction to determine the other contentions that the applicant raised in her application. Conclusion 1. I am satisfied that the correct and preferable decision is for the Tribunal to affirm the finding of both internal reviews, that the respondent did not breach any of the IPPs in the PIPPA and that it should not take any further action in the matter. Orders 1. I make the following orders: 1. The decisions under review are affirmed pursuant to s 63(3)(a) of the ADR Act. 2. Pursuant to s 55(2) of the PPIPA, the Tribunal decides to take no further action. ********** 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: 02 October 2024