NZ v Attorney General's Department [2005] NSWADT 103

CITATION: NZ v Attorney General's Department [2005] NSWADT 103 DIVISION: General Division APPLICANT PARTIES: NZ RESPONDENT Attorney General's Department FILE NUMBER: 043380 HEARING DATES: On the papers SUBMISSIONS CLOSED: 04/05/2005 DATE OF DECISION: 05/10/2005

BEFORE: O'Connor K - DCJ (President) APPLICATION: Jurisdiction MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Coroners Act 1980 Freedom of Information Act 1989 Privacy & Personal Information Protection Act 1998 N (No 2) v Director General, Attorney General's Department [2002] NSWADT 33 CASES CITED: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 APPLICANT REPRESENTATION: In person RESPONDENT S Free, solicitor ORDERS: Application for review dismissed, for want of jurisdiction

REASONS FOR DECISION 1 This application arises under the Privacy and Personal Information Protection Act 1998 (the Privacy Act). The applicant complains that the Privacy Act was contravened in various ways by the Local Court at Waverley in 2003 and 2004. During that period the applicant and some other members of her family (in particular a sister, X) had made applications to the apprehended violence orders (AVO) against each other. The various applications were heard and determined by a Magistrate. 2 The complaint questions the conduct of Registry officers in granting access to documents relating to her held on the Court files. 3 An illustration of the applicant's concerns is provided by another Tribunal decision, relating to a complaint made by her against the Department of Housing. The case dealt with a letter sent to the applicant's sister by an officer of the Department of Housing. The contents of the letter might be interpreted as involving a negative conclusion as to whether the applicant was the source of letters making false allegations against her sister: see NZ v Director General, New South Wales Department of Housing [2005] NSWADT 58. This letter found its way onto the Court file. In the course of these proceedings the applicant expressed great concern that this letter may have been read by the Magistrate who dealt with the AVO proceedings; and may have been taken into account in reaching the decision to issue an order against the applicant. 4 The applicant had a number of other objections to the extent to which the contents of Court files had been made available to other parties to the proceedings. 5 For administrative purposes, Local Courts form part of the Attorney General's Department. Consequently, the Department has responded to the complaint. It has conducted an internal review. The Department is a public sector agency bound by the Privacy Act. There is no dispute that the documents released contained personal information about the applicant. The Department has objected to the jurisdiction of the Tribunal in light of the findings of its internal review that the conduct in issue related entirely to the management of the files held at the Court for the purpose of the exercise of its judicial functions. While the Privacy Act is generally applicable to public sector agencies, there is a specific exclusion in relation to the exercise by courts of judicial functions. Section 6 provides, relevantly: ' 6 Courts, tribunals and Royal Commissions not affected (1) Nothing in this Act affects the manner in which a court or tribunal, or the manner in which the holder of an office relating to a court or tribunal, exercises the court's, or the tribunal's, judicial functions. (2) … (3) In this section, "judicial functions" of a court or tribunal means such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it, and includes: (a) in relation to a Magistrate—such of the functions of the Magistrate as relate to the conduct of committal proceedings, and (b) in relation to a coroner—such of the functions of the coroner as relate to the conduct of inquests and inquiries under the Coroners Act 1980.' 6 This decision deals with the Department's objection. The parties were agreeable to the matter being dealt with by written submissions, as permitted by s 76 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act). Relevant Circumstances 7 The Department's internal review report includes the following factual findings: '[The applicant] had forwarded a very large amount of material to Waverley Court. The Registrar divided the material into documents which related to the court proceedings and those that did not. The former materials were placed on the Court file and the latter on a separate file. … Some material on the Court file was made available to other parties to proceedings. No access was provided to third parties to material held on the other file.' 8 These findings were the subject of a more detailed statement in the helpful submissions filed in these proceedings on 17 March 2005 on behalf of the Department by the Crown Solicitor's Office (CSO). The following account of the circumstances is derived from those submissions. 9 As already noted, the conduct the subject of complaint concerns the release of certain documents that were held by the Registry. The CSO submissions noted that at the planning meeting held by the Tribunal on 16 December 2004 the applicant clarified her complaint stating that her concern related to the release of three exhibits to her relatives (who were opposing her in various AVO proceedings brought by her) and to another person (who the Tribunal will describe as Ms TG). 10 The CSO submissions contain at pages 2 and 3 a precise account of the parties to the various proceedings, the files affected, the nature of the three exhibits mentioned and the context in which they were tendered to the Court. There are ten Court files. Two relate to proceedings brought against the applicant by three of her relatives. One relates to proceedings brought against the applicant for the protection of Ms TG. Seven relate to proceedings brought by the applicant against six of her relatives. It is not necessary to set out the information provided to the Tribunal in any further detail. All of the applications apart from the one affecting Ms TG were dealt with by the Court on 5 August 2003. (The TG application was dealt with on 16 January 2004.) 11 The three exhibits in contention were part of the two AVO order applications initiated by the applicant. Exhibit 14 is a statutory declaration by applicant which includes handwritten comments, Exhibit 20 is a sworn statement by applicant's son and Exhibit 24 is another copy of the statutory declaration comprising Exhibit 14, but without handwritten comments. 12 Based on the information provided to the Tribunal in the Department's internal review report and the further information provided in the CSO submissions, the Tribunal is satisfied that the material to which access was given by Registry staff was filed and used in connection with the Court proceedings. Jurisdiction 13 The case raises the question of whether the Registry's conduct falls within the immunity given by s 6. 14 Section 6(1), to reiterate, provides that: 'Nothing in this Act affects the manner in which a court or tribunal, or the manner in which the holder of an office relating to a court or tribunal, exercises the court's, or the tribunal's, judicial functions.' The Department referred in its submissions to the structure of courts, and in particular s 10 of the Local Courts Act which provides for the office of registrar of a local court. The Tribunal is satisfied that a Registrar of a Local Court is the holder of an office of a court. 15 The conduct did not occur in Court, but involved access to files given at the counter by Registry staff. Does activity of this kind fall within the meaning of the 'judicial functions' of the Court? Section 6(3), to reiterate, provides relevantly that: 'In this section, "judicial functions" of a court or tribunal means such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it…'. 16 The Tribunal agrees with the Department's submission that the words 'relate to' have a broad meaning and denote a wide connection between the conduct of interest and the activity of hearing and determining proceedings: Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 per Taylor J at 620, 622; Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 at 479-480 per Wilcox J. 17 See also N (No 2) v Director General, Attorney General's Department [2002] NSWADT 33 at [32]-[33] where I dealt with a similar question, there involving a similarly-expressed immunity from review contained in s 10 of the Freedom of Information Act 1989. In that case there was an issue as to whether communications with the Registry from professional representatives were immune from the operation of the FOI Act on the basis that they were documents held by the Registry in the exercise of functions that 'relate to' the hearing and determination of claims. In that instance I ruled that professional communications of this kind 'are necessary to the efficient conduct of a claim, and fall within the scope … of those functions that 'relate to' the hearing and determination of claims' (at [31]) (appeal dismissed, [2002] NSWADTAP 41). 18 This is a stronger case. The applicant's personal information is found in documents lodged with the Registry for use as evidence in support of her application for AVOs. The efficient performance of judicial functions depends greatly on there being a system for the receipt and organization of intended evidence in advance of the formal hearing of a matter. This system is commonly provided by a Registry under the direction of a Registrar. Decisions will frequently have to be taken by Registry officers as to the extent to which access is given to this material, ahead of hearing; or after the material has been dealt with at hearing, and has, possibly, become part of the evidence. The function of giving access to documents of that kind, and to the personal information they may contain, is one, I consider, that 'relates to' the exercise by the Court of its judicial functions. 19 Accordingly, I consider that the handling of the personal information the subject of the present application for review is, by virtue of s 6, not subject to the Privacy Act. 20 I have had regard to the copious submissions filed by the applicant, but there is nothing in them which causes me to doubt this conclusion. That is not in any way to deny the importance of care being shown in Registry practices so as to ensure that undue violations of privacy are avoided in giving access to Court files. The stance reflected in the Privacy Act is, I consider, that the difficult issues involved in balancing privacy considerations as they relate to Court proceedings with the community's interest in open justice are best left to directions and orders made by the Court, and the development of administrative protocols between the Registrar, the Department, relevant Judicial Officers and the Head of Jurisdiction. There is nothing in this case to suggest other than that Registry access was confined to persons directly affected by the various applications for AVOs. Order 1. Application for review dismissed, for want of jurisdiction.