PC v University of New South Wales [2007] NSWADT 286

Set aside by Appeal :

CITATION: PC v University of New South Wales [2007] NSWADT 286

DIVISION: General Division

APPLICANT PC PARTIES: RESPONDENT University of New South Wales

FILE NUMBER: 063064

HEARING DATES: 1, 2 August2007

SUBMISSIONS CLOSED: 2 August 2007

DATE OF DECISION: 10 December 2007

BEFORE: Wilson R - Judicial Member

CATCHWORDS: Privacy - information protection principle - personal information

MATTER FOR DECISION: Preliminary Matter

LEGISLATION CITED : Privacy and Personal Information Protection Act 1998

EG v Commissioner of Police NSW [2003] NSWADT 150 CASES CITED: NR & NP v RTA [2004] NSWADT 276 NW v NSW Fire Brigades [2005] NSWADT 73

APPLICANT C Jackson, barrister REPRESENTATION: RESPONDENT N Sharp, barrister

ORDERS: 1. The respondent's preliminary application is dismissed; 2. The further hearing of the proceedings on 19 December 2007 is confirmed

REASONS FOR DECISION 1 These proceedings have been commenced and brought pursuant to the provisions of the Privacy and Personal Information Protection Act 1998 (NSW). The Applicant claims that there has been a disclosure by the Respondent of personal information which pertains to her in contravention of the Act. 2 During interlocutory preparation for the hearing of this matter the respondent brought to the fore the possibility that these proceedings could be disposed of finally by considering what was described as a preliminary point. Put simply, this point made by the respondent is that the information which the applicant alleges was disclosed about her is in truth not personal information as defined for the purposes of the Act. This, it was alleged, is because the information in fact falls within the exception provided for in s.4(3)(b): that is, it is information that was contained in a publicly available publication at the material time, namely the date when the information was disclosed. The publication that the respondent relied upon at this stage was a document recorded on and printed from an Internet site. 3 This proposal was not initially put into play alone. The parties were also minded to proceed in a way that distinguished between liability and remedy: the former was to be considered and determined prior to embarking upon an examination as to what was an appropriate remedy. This course was followed and directions were made so as to prepare the proceedings so that liability could be determined as an initial step. Evidence relevant to liability was then filed in due course and the matter listed for hearing on the question of liability alone. This initial proposal was then to be determined during the course of the hearing as to liability. 4 The proceedings then came on for hearing on 1 August 2007 on the question of liability. At the commencement of the hearing this day the respondent tendered fresh evidence in the nature of a copy of a reported decision of the Federal Court of Appeal (Canada) arising from proceedings between the applicant and Atomic Energy of Canada Ltd (reported at (1998) 157 DLR (4th) 689). This report was admitted without objection and became exhibit R9 in the proceedings. Upon the basis of this fresh evidence the respondent then pressed for a determination of the preliminary question that it had earlier raised. By reason of this fresh evidence the respondent asserted that the evidence was clear that the personal information concerning the applicant that had been disclosed was, at the time of disclosure, contained in a publicly available publication. Basically, the respondent said that this report was a publicly available publication that was unattended by some of the issues that surrounded the earlier website document that the respondent had intended to rely upon. The respondent's view was that on this evidence the preliminary question that it wished to argue could only be decided one way, that is, in the respondent's favour. 5 Whilst the applicant had no earlier notice of this report she agreed, through her Counsel, that it would now be appropriate to embark upon the preliminary question for which the respondent now pressed. The applicant was allowed time to consider her position in relation to this development in the case (see transcript page 39). Consequently, with the applicant's agreement, this course was adopted and relevant evidence was tendered by both sides and submissions on this point were made in due course. Generally, it is not desirable to split a case into discrete issues like this as the Tribunal is quite likely to be deprived of receiving relevant evidence on the preliminary point simply because the parties do not perceive it as being material to the argument at the time. The Tribunal, during the course of its deliberations, may well experience a need for additional evidence: a simple example of this is where the Tribunal is unable to give any weight to particular parts of the evidence, a matter which the parties cannot always anticipate. A similar example arises where the Tribunal is not persuaded, on the evidence before it, that it should find, by inference, a fact that is critical to the determination at hand. However this may be, as the applicant was not minded to oppose the course pressed by the respondent the hearing of the case proceeded as it did. This has left the Tribunal with the task of determining whether the information that was in fact disclosed was, at the time of disclosure contained in a publicly available publication, namely the report from the DLR's (exhibit R9). For this purpose, but not otherwise, the respondent accepted that it had in fact made a disclosure of information concerning the applicant. 6 It should be noted that this position only became entirely clear during the course of argument (see pages 41.53, 58.45, 59.35 ff and 66.20 of the transcript of the hearing on 01 August 2007). To bring the Internet publication of the Canadian decision (exhibit R10) into play at this point required affording the applicant an opportunity to cross-examine one of the respondent's witnesses. As this did not occur the respondent eventually chose to rely solely upon the publication of the judgment in the DLR's. 7 Whilst the applicant was minded to make some concessions during the hearing the Tribunal indicated to the parties that it would prefer to proceed upon its own assessment of the evidence (see transcript pages 37.8, 49 and 51). This course was adopted. 8 Consequently, the factual circumstances and the evidence tendered should be briefly set out. In mid September 2005 the applicant received mail at her address in Sydney. The envelope bore the respondent's coat of arms and contained 9 pages of printed material (exhibit A2 pp 49 to 58) concerning legal proceedings that the applicant had earlier commenced in a Canadian Court against a corporation by the name of Atomic Energy of Canada Limited. In form these pages appear as the reasons for decision that were delivered in those proceedings on appeal, possibly some time in 1998, with the hearing being in the early months of that year. The letter contained nothing else. Each of these 9 pages bore what appears to be a date at the bottom "11/09/2005 9:11". 9 On 22 September 2005 the applicant received a communication from a colleague, Professor Bowen, advising her that he, and others, had received information concerning her in the mail. Professor Bowen's email sets out particulars of the envelope and its contents: he says that the envelope bore the respondent's coat of arms and contained "court findings in the case of Atomic Energy of Canada limited v Roya Sheikholeslami" together with an internet (or URL) address (see exhibit A2 page 59). It is the mailed communication to Professor Bowen (and others) which the applicant alleges is the disclosure of personal information contrary to the Act. 10 On the evidence considered so far nothing is known about the letter to Professor Bowen save what is set out in his email to the applicant. A copy of the envelope is in evidence (A2 page 100) but its contents are not in evidence, the documents having been destroyed. The applicant, at a later stage, in fact made enquiries with Professor Bowen, and with the other persons resident in Canada who she believed had received similar communications in the mail, endeavouring to find out more about the contents of these several communications. The applicant made these enquiries around June 2006 by sending to the people in Canada copies of the 9 page document that she had received (in the University envelope) and requesting them to advise whether this was the document that had been sent to them in September 2005. The several replies have become exhibit A3. However, this aspect may be put to one side at the moment. 11 The case that the respondent is presently seeking to make out is that the information communicated to Professor Bowen (and others) about the applicant is information that "is contained in a publicly available publication". As noted earlier the respondent relies upon only exhibit R9 in this preliminary application. The first question then is whether volume 157 of the Dominion Law Reports, from which exhibit R9 was extracted by copying, is a publicly available publication within s.4(3)(b) of the Act. Exhibit R9 shows on its face that the Dominion Law Reports are published by an organisation in Canada and contain a weekly series of reports of cases from all the courts of Canada. It also bears on its face a stamp of the University of Sydney Law Library enclosing the date "31 AUG 1998". Clearly the evidence warrants a finding that the University of Sydney Law Library subscribes to the Dominion Law Reports and that the library in fact contains volume 157, included in which is the subject report of the decision in the case in which the applicant was involved. However, there is presently no other evidence before the Tribunal relevant to this particular question. 12 It is no doubt true that there will be cases where simply knowing the "nature" of a publication will be sufficient to establish that it is a publicly available publication. Regular newspapers and periodicals are a classic example, but this is because we all know that the well known newspapers and journals are published for public consumption and are distributed through various outlets for public consumption. There is really no need for further evidence in such cases. One can readily accept that such publications are publicly available publications, not really because of their nature, but because of what we know about their distribution and availability. On the other hand, the nature of the document may suggest that, at least prima facie, it is not a publicly available publication. A log book of the daily activities on a government agency is but one example: Commissioner of Police NSW v EG [2004] NSWADTAP 10. 13 However, it is equally true that other publications may well require additional evidence relating to, for example, their compilation, publication or availability before it is possible to find that they are publicly available (following the analysis in NW v NSW Fire Brigades [2005] NSWADT 73). 14 The respondent's submission commenced with the proposition that the only relevant fact was that the information under consideration is contained in a volume of the Dominion Law Reports and that this was sufficient to determine the preliminary question (transcript page 65.55). It was then argued that as every judgment of a superior court is publicly available then it must follow that the Dominion Law Reports are publicly available publications (transcript page 62.56). The respondent, by this submission, is in effect seeking to put these reports into the category where knowledge of what the publications are will suffice, no more evidence being required. 15 When a court, or a tribunal for that matter, publishes reasons for decision without restriction (as to the publishing of names or otherwise) it is no doubt true that the court intends that its judgment will be accessible by any member of the public who should wish to read it. However, the Act directs attention to the form in which the information (the reasons for decision) is in fact published. The court may place a copy of its judgment in its own library or on the Internet or it may have arrangements with a publisher who collects relevant decisions and publishes them in a series of authorised reports. Judgements are also published in unauthorised reports. All of these various forms in which a court's reasons for judgment may appear may be regarded as "publications" in the sense that they are legible records which are made available for others to read. This is the sense in which the word "publication" is used in s.4(3)(b) of the Act. Whilst another meaning of the word "publication" is "to be made available to the public" this meaning is not entirely apposite here because the same work is in fact done by the words "publicly available" where they appear in the sub-section. Whichever analysis is employed the end result is the same: to satisfy the element in s.4(3)(b) under consideration, the information must be contained in a document (or publication) that is publicly available. This is to give the words their ordinary meaning (EG v Commissioner of Police NSW [2003] NSWADT 150). Whether volume 157 of the Dominion Law Reports located in the Law Library of Sydney University is publicly available is a question of fact. 16 There is no evidence before the Tribunal upon which a finding can be made that members of the public have unrestricted access to this volume of the Dominion Law Reports. The fact that this volume contains reports of Canadian Courts of Law does not assist this factual enquiry one way or the other. Nor does reliance upon the principle of open justice. This is not the type of enquiry that the sub-section directs the Tribunal to make. 17 Consequently, the Tribunal does not find, on the evidence before it, that volume 157 of the Dominion Law Reports from which exhibit R9 was copied, is a publicly available publication within s.4(3)(b) of the Act. It follows that the respondent's preliminary application must fail because it has not been established that this particular volume in fact is a publicly available publication, this being an essential element of the sub-section. 18 The respondent's preliminary application is dismissed and the further hearing of the proceedings on 19 December 2007 is confirmed. As the proceedings are already listed for further hearing no further order is required at this stage of the proceedings.