CITATION: GA v Department of Education and Training & NSW Police (No 2) [2005] NSWADT 10 This decision has been amended. Please see the end of the decision for a list of the amendments. DIVISION: General Division APPLICANT GA PARTIES: FIRST RESPONDENT Director General, Department of Education and Training SECOND RESPONDENT Commissioner of Police, NSW Police FILE NUMBER: 023250; 043159 HEARING DATES: 02/09/2004 SUBMISSIONS CLOSED: 12/17/2004 DATE OF DECISION: 01/20/2005 BEFORE: Robinson MA - Judicial Member APPLICATION: Jurisdiction - Privacy - information protection principle - disclosure to third party - Privacy - information protection principle - personal information - use MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Privacy & Personal Information Protection Act 1998 Chapman v Commissioner of Police, New South Wales Police (GD) [2004] NSWADTAP 16 CASES CITED: GA & Ors v Department of Education and Training and NSW Police (GD) [2004] NSWADTAP 18 GA v Department of Education and Training (No 3) (GD) [2004] NSWADTAP 50 APPLICANT In person REPRESENTATION: FIRST RESPONDENT S Free, solicitor SECOND RESPONDENT P McLaughlin, solicitor ORDERS: 1. The Tribunal does not have jurisdiction in this case to review conduct or alleged contraventions relating to that which is described in these reasons as "Transaction Two" in respect of the first and second respondents; 2. The Tribunal will go on to determine at a hearing what arises, if anything, from Point 4 of the second page of the letter from the Principal to the second respondent dated 23 October 2001 as remitted by the Appeal Panel on 25 May 2004 ("the Point 4 issue"); 3. At that hearing, the Tribunal will not permit the adducing of any further evidence regarding the Point 4 Issue. The hearing will comprise submissions only; 4. The hearing of the Point 4 issue is fixed for 3 March 2005. It is desirable for the parties to exchange and file written submissions before the hearing. REASONS FOR DECISION 1 This is a series of interlocutory applications made by the first and second respondents including applications going to jurisdiction of the Tribunal in the context of privacy proceedings. The underlying application is an application pursuant to section 55 of the Privacy and Personal Information Protection Act 1998 (NSW) ("the Act or the Privacy Act") for a review of the conduct of two public sector agencies in relation to their dealing with alleged personal information of the applicant. It is alleged by the applicant that the respondent contravened a number of information protection principles and compensation is sought along with other orders pursuant to section 55(2) of the Act. The respondents' case is that there was no breach of the Act established and, if there was, exemptions from compliance applied. 2 Detailed factual background about the history of the underlying application and the several interlocutory appeals is contained in the following determinations of the Tribunal and the Appeal Panel: a) GA and Ors v Department of Education and Training and NSW Police [2004] NSWADT 2 (12 January 2004); b) GA & Ors v Department of Education and Training and NSW Police (GD) [2004] NSWADTAP 18 (25 May 2004); c) Department of Education and Training v GA, GB, GC, GD & GE (No.2) (GD) [2004] NSWADTAP 36 (2 September 2004); and d) Department of Education and Training v GA (No.3) [2004] NSWADTAP 50 (11 November 2004). 3 I will not repeat here the factual material that is contained in those determinations, except for what is additional and necessary in order for me to deal with the present applications. 4 The applicant (GA) is a father of three sons living in Sydney (GB, GC & GD). At some point, while his sons were at secondary school, the GA family took in the then girlfriend (GE) of one of his sons (GC). She lived with them for a time. The applicant has pursued this litigation up until recently, primarily on her behalf, in connection with the release by the Principal of her former school of certain information and her allegedly unhappy dealings with the NSW Police just prior to her coming to stay with the applicant family in 2000. 5 Before describing the nature of the present applications, I will set out some procedural history that is relevant to them. 6 On 5 November 2000 the police attended the applicant's home to interview GE, the then girlfriend of applicant GC. GE had been in a serious domestic dispute with her mother and the police had already been called to her home. On 10 November 2000, the police attended the Sydney school of GE and GC and spoke with the Principal about GE and the applicant's family. In response to a letter dated 17 October 2001 from Michael Donovan, the Chief Inspector of Police from the relevant area (while he was conducting an investigation into a complaint against certain police officers made under Part 8 of the Police Act 1990(NSW)) on 23 October 2001, the Principal wrote to the police in response and disclosed certain information which the applicant claims is personal information. 7 On 1 July 2002, the applicant, wrote to the first respondent requesting an internal review pursuant to section 53 of the Privacy Act. He wrote on his own behalf, and on behalf of his sons and the girlfriend. The first respondent conducted the review on 28 October 2002. On 4 November 2002, applications were filed in the Tribunal on behalf of the applicant and his sons and the girlfriend. The applicant was nominated in each of the other applications as being the person sought to represent that person before the Tribunal. 8 Between December 2002 and February 2003, there were three planning meetings (case conferences) conducted by the Tribunal (differently constituted). At those meetings, the NSW police were formally joined as a party (and a separate file was created by the Tribunal Registry). I accept the evidence of Mr Anthony Bendall, Manager of FOI and Privacy for the first respondent in his affidavit of 12 August 2004 as to what occurred at those planning meetings. Briefly, the parties and the Tribunal identified three separate "transactions" and the Tribunal resolved to deal with transaction one & three together and transaction two later. It appears, and I accept, that the parties and the Tribunal regarded the transactions as comprising the following: Transaction One – A conversation between police officers and the Principal on 10 November 2000; Transaction Two – Other, unspecified conversations between the Principal and his school staff; and Transaction Three – The Principal's letter dated 23 October 2001. 9 As it transpires, the applicant was not directly asked by the then Tribunal to spell out what he contended was the precise content of Transaction Two. The Tribunal published formal directions for a statement and submissions to be filed and it reserved "for further directions" the application as it related to Transaction Two "to which the [first respondent] is the only respondent". 10 I have now finally determined Transactions One and Three in the main in an earlier determination made after a four day hearing, subject to what has been remitted to me by the Appeal Panel, namely, my reconsideration of "Points 1, 2, 4 & 5" of the letter from the Principal to the second respondent, which I may consider with or without the hearing of further evidence (see, GA & Ors v Department of Education and Training and NSW Police (GD) [2004] NSWADTAP 18 at [56]). Those points are: 1. Mr and Mrs (parents of GE) separated some years ago. For several years (GE's mother) has lived with her three children and a same sex partner. GE has resented this arrangement. 2. GE had developed an increasingly intimate relationship with GC against the wishes of her mother. 4. The (appellant) family has had an unhappy relationship with the school including allegations to the Minister, which were subsequently shown to be false. 5. Following a fire in the school in June 2001 one of the (appellant) boys was apprehended by a security guard when he was seen leaving the building after police and fire brigade had left. He was consequently charged by Macquarie Fields police. Following this incident, (the boy) left school by his parents' choosing. 11 In a separate application, the Appeal Panel determined that the applicant's internal review application to the first respondent did not relate to the collection of any personal information by the first respondent (GA v Department of Education and Training (No 3) (GD) [2004] NSWADTAP 50 at [20]. 12 On 30 June 2004, the parties attended a directions hearing before me. The applicants were each represented by GA. The applicant's then representative stated that he wished the Transaction 2 issue to now be determined and that he wished to call about 5 further witnesses. Transaction Two was described as comprising "a series of discussions between the Principal and other staff members at the school" and it was said by GA that the second respondent remained as a necessary respondent. As to the remaining issues remitted from the Appeal Panel, GA indicated that he would like to recall the Principal and have a further substantive hearing and he sought to adduce further evidence. I resolved that the issue of the remitted matters should be determined after the Appeal Panel ruled on the collection issues regarding the first respondent (which it ultimately did on 11 November 2004). The applicants were directed that day to, inter alia, file and serve a statement of alleged breaches of the Privacy Act, in order to ascertain precisely what were the Transaction Two issues they sought to agitate before the Tribunal. A hearing was set down for 2 September 2004 for the hearing of the first respondent's jurisdictional application. 13 On 27 July 2004 the applicants filed two documents listing numerous alleged Transaction Two breaches of the Privacy Act by each respondent – 22 pages in total. 14 On 2 September 2004, the applicants were each represented by GA, the first respondent was represented by a solicitor and there was no appearance on behalf of the second respondent. The first respondent read the affidavit of Anthony Bendall sworn 12 August 2004 and relied on its written submissions on "preliminary jurisdictional issues" dated and filed 1 September 2004 and made oral submissions. The applicant made oral submissions. The Tribunal reserved its decision. 15 On about 17 September 2004 the Tribunal received a facsimile communication from all the applicants other than GA requesting, inter alia, that they no longer wished to continue with the proceedings and that that had apparently been the position from June 2003. At my request, the Tribunal Registry sent a copy of the facsimile transmission to the other parties and a further directions hearing was called and heard on 11 October 2004. 16 At that hearing, GA announced that he appeared for all applicants and both respondents appeared with legal representation. GA also gave oral evidence in support of his contention that the said facsimile transmission should not be accepted as it was somehow procured by the "undue influence" of certain police officers. He also gave evidence of a recent and sudden family breakdown whereby he now no longer lives with his wife and sons. He also suspected this breakdown had something to do with the police. He agreed that the signatures on the documents appeared to be genuine. The Tribunal rendered an oral determination that day dismissing the proceedings in relation to the three sons (GB, GC, GD) and the girlfriend of GC (GE) primarily as the Tribunal did not accept the GA's undue influence evidence and the remaining applicants had made it plain to the Tribunal their wishes to discontinue their respective proceedings. 17 Accordingly, the Tribunal made directions that the parties file and serve written submissions as to what remained of the Transaction Two matter in light of the Tribunal's ruling of 11 October 2004. 18 On about 16 September 2004 the Tribunal received a one page written submission from the remaining applicant setting out the paragraphs of the Transaction Two breaches documents filed on 27 July 2004 he still pressed (which were the bulk of them) and asserting that he pressed them as "a person aggrieved by the conduct of [the respondents]", section 53(1) of the Act and, as "…a person who has made an application for internal review…", section 55(1) of the Act. No other application was made (under the Administrative Decisions Tribunal Act 1997 (NSW) ("the ADT Act") or any other Act) and nothing else was said or submitted by the applicant in this regard. 19 The first respondent filed further written submissions on 8 November 2004 going primarily to the scope of the application as continued by the remaining applicant. The second respondent filed written submissions on 17 December 2004 on a number of matters and making a number of applications. The applicant has not sought to respond to these submissions. The Applicant's Status – Personal or Third Party 20 The question of the applicant's status was the subject of the first respondent's written submissions filed 8 November 2004. The second respondent also adopted these submissions in relevant respects. 21 In order for the applicant to have standing before the Tribunal in a privacy matter, he must comply with section 55 of the Privacy Act which relevantly provides: "(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 Tribunal for a review of the conduct that was the subject of the application under section 53." 22 The respondents argue that the applicant should not be permitted to transform his original and "personal" application for an internal review and his Tribunal application into one whereby he now may be said to be a "person aggrieved by the conduct of the respondents" in relation to all five original and separate applicants (the three sons and the girlfriend). They argue that, in short: a) The original internal review application was a series of personal applications made "on behalf of" named persons (each of whom became, or sought to become separate applicants before the Tribunal in separate matters concerning their own respective personal information). The applications should be regarded as separate applications whereby GA merely "represented" the other applicants. In other words, he was not seeking an internal review personally in relation to every matter that concerned every one of the named applicants. That would have made him a "third party" applicant; b) The descriptions of the alleged breaches and remedies sought in the Tribunal(and in the case of the second respondent, in the internal review request as well) are in separate sections, identified under the heading of each individual person and indicate that this was the intention of the original applicants, namely, to have their personal matters investigated and considered separately by the respondents; and c) The matters have been dealt with by the Tribunal all along as if there were a number of separate matters that were being heard together for convenience only. 23 I agree with those reasons. It is also clear to me from the conduct of these lengthy proceedings to date that the applicant has never been acting in the capacity of a person aggrieved by the conduct of the respondents in all these factual matters. He has been personally concerned with those matters that directly affect him, and he has been acting as a representative or agent of the other former parties in various capacities. Once the proceedings were commenced in the Tribunal, the applicants' solicitor, and later on, GA in person was granted permission to act as the representative of each party as their "agent" pursuant to section 71(1)(b) of the ADT Act. It was never suggested that the other represented parties were minors or otherwise incapable of representing themselves (s 71(1)(c) of the ADT Act). 24 Accordingly, the applicant is only permitted to agitate matters before the Tribunal in these proceedings that relate to conduct or alleged contraventions concerning him personally (his personal information) and which directly relate to such conduct "that was the subject of the [internal review] application" under s 53 of the Privacy Act. That is the nature of the application that has already been substantially heard before the Tribunal and in which several interlocutory applications have been heard and determined. 25 In relation to matters that do not concern the applicant personally (in that they do not comprise his personal information), the applicant has not sought a Tribunal review of the conduct that was the subject of the application under section 53 of the ADT Act (s 55 of the Act). The Scope of the Remaining Application 26 By way of the extensive list of alleged "Transaction Two" documents filed by the applicant on 27 July 2004 and by the applicant's contention now that the second respondent must remain a party to any Transaction Two hearing, I consider the applicant is impermissibly seeking to shift ground in these proceedings and he is seeking to widen and complicate the dispute. Given what occurred at the early planning meetings in this matter where the applicant accepted a determination of the Tribunal that Transaction Two matters related to conversations between the Principal of the school and members of his staff, and where the Tribunal itself ruled that the first respondent would be the only respondent in relation to the Transaction Two matters, I do not consider that it would be appropriate to allow the applicant to broaden the dispute at such a late stage, especially in light of opposition from the respondents. Applicants should not lightly be permitted to depart from concessions (or directions) made at planning meetings - Chapman v Commissioner of Police, New South Wales Police (GD) [2004] NSWADTAP 16 at [27]. 27 Accordingly, in my view, the applicant cannot seek to raise matters before the Tribunal that were not a part of Transaction Two as it was understood by the parties and the Tribunal at the early planning meetings, namely, conversations between the Principal and his school staff. Additionally, the conduct must concern the applicant himself and not anyone else and it must comprise conduct or alleged contraventions of a kind which were reasonably open to the agency on a reading of the entire application for internal review - Department of Education and Training v GA (No.3) [2004] NSWADTAP 50 at [14] & [20]. 28 In other words, in order for the Transaction Two conversations between the Principal and his school staff to be properly before the Tribunal as a matter of jurisdiction, it must be ascertainable on the face of the original internal review applications that the alleged conduct affected the applicant GA personally in that it related to his personal information. In the original 4 day hearing of Transactions One & Three in these proceedings, the internal review applications were tendered by the applicant as exhibits 1 and 2. As it relates to the first respondent, the internal review request comprised a letter dated 1 July 2002 by the applicant and attached to it were two documents. The first attachment was the letter from the Principal to the Police dated 23 October 2001. The second attachment was described in the application letter as "associated conversations documented by Malcolm Holdem [a police officer] on 1/10/01". In Exhibit 1, a COPS report (Event Ref No E 10391034) was attached. It now appears that this attachment was incorrect and the date on the application letter was incorrect and should have read 4 October 2001 and attached should have been a copy of the report written by Constable Malcolm Holdem to Chief Inspector Donovan dated 4 October 2001 (see affidavit of Anthony Bendall at pages 6-8, the submissions of the applicant dated 16 September 2004, page 3, and, the Appeal Panel's decision - GA & Ors v Department of Education and Training and NSW Police (GD) [2004] NSWADTAP 18 at [4]). 29 In that letter from the Constable to the Chief Inspector, there are (on the second page) references to unspecified conversations between the Principal and his School Counsellor and to conversations between the former applicant girlfriend (GE) and the School Counsellor that had occurred before that date and that had all concerned GE and her family (and that plainly did not concern the applicant). 30 On the face of the internal review application to the first respondent, I find that it was not reasonably open for the first respondent to conclude that said application related to the alleged Transaction Two conduct or contraventions as they do not relate to the applicant's alleged personal information - Department of Education and Training v GA (No.3) [2004] NSWADTAP 50 at [14] & [20]. 31 As to the internal review application directed to the second respondent (Exhibit 2), I consider that it similarly does not identify on its face why or in what manner the Transaction Two matters, as defined, and as they concern conversations within the School, relate to the applicant GA in any way. Accordingly, I find that it was not reasonably open for the second respondent to conclude that said application related to the alleged Transaction Two conduct or contraventions. 32 As a result of these determinations, the Tribunal does not have jurisdiction to consider the conduct and contraventions described as Transaction Two matters in relation to both respondents. Further Involvement of the Second Respondent 33 As to the further involvement of the second respondent in these proceedings, I consider that it only relates to my reconsideration of the remaining matters from Transaction Three (Points 1, 2, 4 & 5 of the second page of the letter from the Principal to the second respondent dated 23 October 2001- GA & Ors v Department of Education and Training and NSW Police (GD) [2004] NSWADTAP 18 at [56]). All other issues were the subject of the Tribunal's or the Appeal Panel's determinations. As to the four remaining points, it is significant to note that they were remitted by the Appeal Panel at a time before the former applicants' proceedings were dismissed on 11 October 2004. Upon further examination of the points remitted and from the position of the remaining applicant, Points 1, 2 and 5 are plainly not relevant to his case (as Points 1 & 2 relate to GE and Point 5 relates to one of the applicant's sons, no longer a minor and who sought to discontinue his own application before the Tribunal). Accordingly, the Tribunal shall go on to consider only point 4, namely the allegation that: "The (appellant) family has had an unhappy relationship with the school including allegations to the Minister, which were subsequently shown to be false." 34 That matter was the subject of significant evidence given at the original hearing, particularly by the Principal, who was cross examined on the issue (and at which the applicant was represented by a solicitor). I am prepared to hear the final submissions of the parties at a hearing I shall fix for 3 March 2005. Given the removal of the other applicants and the Tribunal's determinations above, I do not consider it would be appropriate to hear any further evidence going to Point 4 (which was part of Transaction 3 and fully argued before the Tribunal in the 2003 hearings in these proceedings). The Tribunal will then hear submissions going to Point 4 based on the existing evidence. Further Involvement of the First Respondent 35 As to the further involvement of the first respondent, I consider its jurisdictional application successful, in that, the Transaction Two matters will not be permitted by the Tribunal to be agitated for the reasons set out above. In its submissions filed 1 September 2004, the first respondent also argued that the Tribunal should make rulings concerning a further internal review application made by the applicant on about 4 May 2003, which the first respondent says is outside the 6 month time limit imposed by section 53(3)(d) of the Privacy Act. It was said there was an analogy between the said application and the present proceedings. As that matter is not formally before the Tribunal, I make no findings in relation to it. Proceedings of some kind would need to be commenced in an appropriate forum for those questions to be the subject of any formal adjudication. 36 I also note that the Privacy Commissioner issued three Directions pursuant to section 41 of the Privacy Act specifically exempting the first respondent from compliance with sections 9, 10, 12-15, 17-19 of the Privacy Act in respect of conduct that occurred before 31 December 2000. The Applicant was only able to complain of section 8 (collection), 11(retention and security) and 16 (checking accuracy before use) in regard to these events. After the Appeal Panel decision of 11 November 2004, the applicant could no longer complain as to collection issues due to the manner in which the internal review application had been made. 37 The first respondent should appear at a further hearing for the Tribunal to consider and determine what arises from Point 4 of the second page of the letter from the Principal to the second respondent dated 23 October 2001 for the reasons set out above. Determination 38 The Tribunal does not have jurisdiction in this case to review conduct or alleged contraventions relating to that which is described in these reasons as "Transaction Two" in respect of the first and second respondents. 39 The Tribunal will go on to determine at a hearing what arises, if anything, from Point 4 of the second page of the letter from the Principal to the second respondent dated 23 October 2001 as remitted by the Appeal Panel on 25 May 2004 ("the Point 4 issue"). 40 At that hearing, the Tribunal will not permit the adducing of any further evidence regarding the Point 4 Issue. The hearing will comprise submissions only. 41 The hearing of the Point 4 issue is fixed for 3 March 2005. It is desirable for the parties to exchange and file written submissions before the hearing. 03/03/2005 - To replace word "Councillor" with the word "Counsellor" in para 29; to insert the words "for the Tribunal" after the word "hearing" in para 37 - Paragraph(s) 29 and 37 03/03/2005 - To replace word "Councillor" with the word "Counsellor" in para 29; to insert the words "for the Tribunal" after the word "hearing" in para 37 - Paragraph(s) 29 and 37 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.