Appeal Panel - Internal CITATION: GR v Department of Housing (No.2) (GD) [2006] NSWADTAP 34 APPELLANT PARTIES: GR RESPONDENT Department of Housing FILE NUMBER: 069005 HEARING DATES: 15/03/2006 SUBMISSIONS CLOSED: 03/15/2006 DATE OF DECISION: 08/04/2006 BEFORE: O'Connor K - DCJ (President); Needham J SC - Judicial Member; Blake C - Non Judicial Member CATCHWORDS: Jurisdiction - statutory interpretation - Privacy and Personal Information Protection Act - meaning of 'personal information' - reopening prior decision - functus officio MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 043205 DATE OF DECISION UNDER APPEAL: 12/16/2005 LEGISLATION CITED : Privacy and Personal Information Protection Act 1998 GR v Department of Housing [2003] NSWADT 268 GR v Director-General, Department of Housing (GD) [2004] NSWADTAP 26 Vice-Chancellor Macquarie University v FM [2005] NSWCA 192 GR v Department of Housing (No 2) [2005] NSWADT 301 CASES CITED: Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581 GA v Dept of Education & Training [2004] NSWADTAP 18 Sydney Water Corp Ltd v Industrial Relations Commission of NSW (2004) 61 NSWLR 661 Australian Gas Light Co v Valuer General (1940) 40 SR (NSW) 126 Azzopardi v Tasman UEB Industries Pty Ltd (1985) 4 NSWLR 139 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 APPLICANT In person REPRESENTATION: RESPONDENT L J Karp of counsel instructed by C Valacos, solicitor, Department of Housing ORDERS: Appeal dismissed REASONS FOR DECISION 1 This matter has a long history. In October 2002 the appellant applied to the Tribunal pursuant to s 55 of the Privacy and Personal Information Protection Act 1998 (the Privacy Act) for review of the conduct of the respondent agency. The Tribunal found one of his allegations in relation to the respondent agency's conduct proven, but refused the appellant's claim for damages: GR v Department of Housing [2003] NSWADT 268. The Tribunal refused the claim on the basis that he had failed to make out the prerequisite (causation) for an award of damages found in s 55(4)(b) of the Act, which provides – '(b) the Tribunal is [to be] satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency.' 2 The appellant appealed to the Appeal Panel. There was no appeal by the respondent against the finding of contravention. 3 The Appeal Panel set aside the Tribunal's decision as it related to the refusal of the damages claim, as, in its view, the Tribunal, having made the finding of contravention, did not afford the appellant an adequate opportunity to put forward evidence that might support his claim for psychological harm: GR v Director-General, Department of Housing (GD) [2004] NSWADTAP 26. The Appeal Panel remitted the application to the Tribunal for redetermination. The Appeal Panel set a timetable allowing the appellant to put on evidence relating to his psychological health, including evidence as to the extent to which any present deficiency in that regard might be said to have been 'because' of the conduct of the agency in contravening the Act. 4 The matter moved slowly. Eventually the matter proceeded to final hearing on 9 June 2005. The appellant placed before the Tribunal his evidence relating to the effect of the disclosure on his health. The Tribunal reserved its decision. The next day, 10 June 2005, the Court of Appeal delivered a decision which, in the Tribunal's view, affected the basis for its original finding of contravention: Vice-Chancellor Macquarie University v FM [2005] NSWCA 192 (FM). The Tribunal invited further submissions and held a further hearing on 31 August 2005. In its decision delivered on 16 December 2005, the Tribunal held, on the basis of the Court of Appeal decision, that it had erred in its initial decision in making a finding of contravention: GR v Department of Housing (No 2) [2005] NSWADT 301. Accordingly the damages claim did not have a statutory foundation, and must be dismissed. If it were wrong in this conclusion and the damages claim did have a statutory foundation, it would, in light of the evidence received on 9 June 2005, have awarded the appellant $15,000. 5 The appellant now appeals against that decision. While the appellant was represented at the remitted proceedings, he appeared without representation at the present appeal hearing. 6 Prior to the Court of Appeal decision, the Tribunal had interpreted the Privacy Act, so far at least as it affected agency practice in relation to the disclosure of personal information about individuals, as extending to situations where an agency officer expressed oral opinions about individuals with whom the agency had a relationship, though the contents of the opinion were not to be found in any agency record relating to the individual. The Court held that it was an error to construe the term 'personal information' as used in the Privacy Act as extending to information of that kind. The primary definition of 'personal information' found in s 4(1) is: '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.' 7 In the case of a disclosure by an agency of personal information, the primary rule is one of prohibition. Section 18(1) commences: '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'. The rule is subject to several exceptions. 8 In FM the Tribunal had found that the disclosure the subject of complaint (various comments and other information relating to a former university student given by two senior academic staff members to a university in which the student was now enrolled) were not based on any records of the respondent agency. The information was 'held' only in the mind of these persons. 9 While it is the case that the primary definition of 'personal information' in the Act covers opinions expressed by agencies about individuals, the Court considered that it was clear, reading the Act as a whole, that the information constituted by the opinion can not involve 'material held only in the mind of a person'. The Court referred to the several provisions in the Act placing duties on agencies in relation to information 'held' by them, and the importance of that point to the general workability of the Act. 10 Referring to the words 'possession or control' used in the definition, Spigelman CJ said at [34]: 'Both words connote some form of physical object upon which or within which an information or opinion is recorded. A person is neither in 'possession', nor in 'control', of the contents of his or her mind.' 11 The occurrence which had led the Tribunal in the present case to make its adverse finding involved contact between the producer of a morning talk-back radio program and a media liaison officer employed by the agency. This contact had occurred on 27 June 2002. In the weeks immediately preceding that date, the appellant, a tenant of the respondent agency, had been involved in litigation against the agency over issues to do with repairs to his residence. There had been a history of contention between the appellant and the agency, much of which is recounted in the Tribunal's original decision. 12 In response to adverse comments made about the agency by the presenter of the program, he had contacted the program to tell his story in relation to the agency. 13 The producer, in line with usual practice in considering whether to put a public complainant to air, contacted the agency's media liaison officer, David Maher. Mr Maher had no specific knowledge of the appellant, and contacted Mr Rodney Land, a senior officer in the agency, who had had responsibility for dealing with the appellant in relation to a number of the appellant's recent disputes with the agency, including the recent litigation. 14 According to Mr Maher, Mr Land gave him an oral account of the agency's dealings with the appellant. He told him that the appellant was a 'known troublemaker' and Mr Maher passed this comment on to the producer. Mr Maher also made reference to the history of disputes, and what they involved. Mr Maher's account of what he said to the producer is contained in an affidavit sworn 7 April 2002, part of Exhibit 1 in the original proceedings. The producer's account of her contact with Mr Maher is the subject of a letter to the agency, also part of Exhibit 1. 15 The problem as the Tribunal saw it, in light of the Court of Appeal decision, was that there was, to use the words of the Chief Justice, no 'form of physical object upon which or within which an information or opinion is recorded'. The Tribunal asked the parties to ascertain whether the opinion disclosed ('known troublemaker') could be found anywhere in the files of the agency. The material parts of the Tribunal's decision on this point follow: '13 … In order to avoid further potential difficulties arising or uncertainties remaining in the matter, the parties were content for the Tribunal to direct that the respondent now make its relevant files available to the applicant's legal advisers for inspection. The matter was stood over to a further hearing in order to ascertain whether the parties then wished to maintain their respective positions in light of the discovered material. 14 On 8 November 2005, the parties attended a planning meeting before the Tribunal. Counsel for the applicant said that the inspection of respondent's relevant files had occurred and that no document was present in which the relevant words or opinion had been recorded. Accordingly, it was accepted by the parties that there would be little point in the Tribunal going on to hold a further hearing, if it decided to revisit or reopen the original decision in the light of FM. Each party then stated that the remaining submissions and applications set out above in these reasons were maintained, namely, the applicant maintained his contention that the Tribunal could not revisit the original decision and the respondent maintained its contention that it could and should and that, thereupon, the original decision should be reversed. … 20 Due to the investigation undertaken by the parties in the present case this year regarding inspection of the respondent's documents, I am satisfied that there is little point in the Tribunal conducting any further hearing into the factual issues. I am satisfied that no document of the respondent records the offending remarks of the officer of the respondent. It was merely an expressed opinion. As such, FM is directly applicable.' 16 This is a finding of fact, founded in a discovery and inspection process where the appellant was represented by counsel. The appellant has asserted in his notice of appeal that there must be a record, and the file has been tampered with to remove it. As to this assertion, we note that the legal importance of there being a record only became clear when the Court of Appeal decision was published (10 June 2005). This issue was canvassed with the parties at a directions hearing on 31 August 2005. In accordance with directions made that day, the files were lodged promptly with the Tribunal under cover of a letter dated 5 September on 7 September 2005. These facts all point against the likelihood of any file tampering, a serious allegation for which the appellant can supply no evidence. 17 We should indicate that we have made our own inspection of the files, and agree that the words 'known troublemaker' or words to similar effect are not recorded in the files. The files consist entirely of administrative documents relating to the agency's relationship with the appellant, and include file notes prepared by officers of the agency, and statements made by officers including Mr Land, but none contain the offensive words. 18 The Tribunal ruled that its error in making its original finding was of a kind that it could properly revisit. It dealt at some length in its reasons with this issue. The Appeal Panel agrees with the reasoning of the Tribunal. Ordinarily, the general principle applies that a court or tribunal can not reopen a matter where it has made final findings and is therefore functus officio (has discharged its duty). This, however, is an exceptional case. 19 What occurred here was that an understanding of the applicable law held by the Tribunal turned out to be erroneous (one not at any stage disputed by the agency – who had been represented). An ultimate finding of fact (here, whether the comment constituted 'personal information' within the meaning of the Privacy Act) was based on an error in construction of the statute. We agree with the approach taken by the Tribunal at [18]-[19] of its reasons, i.e.: '18 The effect of the Appeal Panel's decision to remit the question of compensation must carry with it an obligation to consider the premise upon which that issue must be determined. The position is that I must accept the now-declared interpretation of section 4 of the Act in FM as the legally correct interpretation. This does not mean I uncritically accept the "declaratory theory" of law. However, in the absence of any "prospective overruling" by the Court of Appeal (namely, an order that the interpretation of the Act in FM is to apply only on and from a particular date), I must accept that the Court of Appeal decision has retrospective operation (see, eg: Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581 at 593D to 595C (per Sackville J with Foster and Lehane JJ agreeing). An application to the High Court of Australia for leave to appeal that decision was refused on 4 August 1997 [1997] 15 Leg Rep SL4c). It follows, that to maintain the Tribunal's ruling in the original decision would be to compound a legal error. That error goes to jurisdiction. 19 While I am mindful of the Appeal Panel's decision in GA v Dept of Education & Training [2004] NSWADTAP 18 at [10] to [21], I do not consider it applicable to the situation here, where it is now plain that the Tribunal applied an approach that was sufficiently erroneous as to have gone to the Tribunal's jurisdiction. Failing to both identify and apply the correct legal test, being the correct interpretation of and application of section 4 of the Act (as now revealed by the Court of Appeal) was plainly a jurisdictional error (GA, ibid, at [20]; and see, eg, Sydney Water Corp Ltd v Industrial Relations Commission of NSW (2004) 61 NSWLR 661 at [65]-[67]).' Further to the Tribunal's reasons at [19], other leading cases to similar effect include Australian Gas Light Co v Valuer General (1940) 40 SR (NSW) 126 at 138; and Azzopardi v Tasman UEB Industries Pty Ltd (1985) 4 NSWLR 139 at 156. 20 The case of GA, upon which the appellant had relied, concerned a situation where the Tribunal had in the course of proceedings given an oral ruling that it had jurisdiction to deal with a particular matter. At the completion of the hearing, it reserved its final decision. Some time later it delivered its reserved decision, and included within it a consideration of the matter the subject of the ruling. It gave the opposite ruling, holding it was without jurisdiction. The Appeal Panel considered whether the later ruling in effect replaced the earlier ruling, and discussed the matter in terms of whether a Tribunal having ruled on an issue was functus officio as to that issue. We have no disagreement with the Appeal Panel's conclusion. Plainly the Tribunal had ruled, and, without any acknowledgement of that ruling or explanation for reopening the matter, went the other way in its reserved decision. There can be no doubt, we think, that the first ruling was the operative binding decision on the matter. 21 The circumstance here is different. By dint of remitter, the Tribunal continued to have before it the appellant's original application for review of the conduct of the agency. True, it had ruled on the contravention issue, and in the ordinary course would not have been entitled to revisit it. But jurisdiction remains a live question while ever a court or tribunal is seized of a matter. In this instance a matter came to the attention of the Tribunal which went to jurisdiction. Its decision to deal with the damages question (the remitted matter) had followed from its finding of contravention. That finding had depended, as it now transpired, on an erroneous construction of the applicable law of a fundamental kind. The agency had defended itself on the basis that its conduct in describing the appellant as a 'known troublemaker' was governed by an exception to the Act's prohibition on disclosure. That defence was rejected. Had it understood the law correctly, it could have argued from the outset that the conduct was not covered by the Act. This is clearly a jurisdictional argument. 22 It would have been a very odd approach, in our view, had the Tribunal in this instance simply ignored the Court of Appeal decision. The result, inevitably, would have been that the respondent agency would have been forced to appeal. The Appeal Panel would, inevitably in light of the factual position, have ruled in favour of that appeal. While this case is not, for the reasons given, strictly one of functus officio, the observations of Gleeson CJ in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [8] are apposite: 'a rigid approach to the principle of functus officio is inconsistent with good administration and fairness'. 23 Consequently, we dismiss the appeal. 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.