Ormonde v NSW National Parks & Wildlife Service (No 2) [2004] NSWADT 75

CITATION: Ormonde v NSW National Parks & Wildlife Service (No 2) [2004] NSWADT 75 DIVISION: General Division APPLICANT PARTIES: Peter Ormonde RESPONDENT NSW National Parks & Wildlife Service FILE NUMBER: 033238 HEARING DATES: 6/04/2004 SUBMISSIONS CLOSED: 04/06/2004 DATE OF DECISION: 04/19/2004

BEFORE: Montgomery S - Judicial Member APPLICATION: Summons - application to set aside MATTER FOR DECISION: Preliminary matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Privacy & Personal Information Protection Act 1998 State Records Act 1998 CASES CITED: Morgan -v- Director General, Department of Education and Training & anor [2000] NSWADTAP 3 Ormonde v NSW National Parks and Wildlife Service [2003] NSWADT 267 APPLICANT REPRESENTATION: In person RESPONDENT S Prince, barrister ORDERS: ORDERS MADE 6/04/2004; Mr. Ormonde's application for leave to have summonses issued to Ms Helen Anderson, Mr Vernon Dalton, Mr Arthur Diakos, Mr. Brian Gilligan, Mr Stewart Little, Ms Sylvia Lowe, Ms Kate Molloy, Mr. Chris Perkins, Mr Rasheed Sahu-Khan and Mr Carl Solomon is refused.

1 This decision concerns an application to have certain summonses issued by the Tribunal. The proposed summonses request that the ten named individuals appear and give evidence or produce documents at the hearing of the substantive matter. The individuals named in the summonses are Ms Helen Anderson, Mr Vernon Dalton, Mr Arthur Diakos, Mr. Brian Gilligan, Mr Stewart Little, Ms Sylvia Lowe, Ms Kate Molloy, Mr. Chris Perkins, Mr Rasheed Sahu-Khan and Mr Carl Solomon. With the exception of Mr Little each of the named individuals are officers of the NSW National Parks & Wildlife Service ("the Agency"). Mr Little is an Industrial Officer with the New South Wales Public Service Association ("the PSA"). 2 Mr. Prince appeared on behalf of each of the individuals named in the summonses, with the exception of Mr Little. Mr. Prince opposes the application to have each of these summonses issued to his clients. 3 I have previously considered the matter of the issue of summonses to Ms Sylvia Lowe, Mr. Chris Perkins, Ms Kate Molloy and Mr. Brian Gilligan. In Ormonde v NSW National Parks and Wildlife Service [2003] NSWADT 267 I made orders setting aside summonses that had been issued to each of those individuals. Mr. Ormonde now requests leave to have new summonses issued to those individuals and additional summonses to the other named individuals. I am satisfied that no issue of estoppel arises that would prevent Mr. Ormonde bringing this new application. 4 Following the hearing of this application on 6 April 2004 I refused Mr. Ormonde's application. Mr. Ormonde has requested written reasons for my decision. These reasons are provided in response to that request. 5 The substantive matter relates to applications by Mr. Ormonde to the Agency for access to certain documents under the Privacy and Personal Information Protection Act 1998 ("the Privacy Act"). 6 An issue in the substantive matter is whether the Agency has conducted an adequate search for documents covered by Mr. Ormonde's application under the Privacy Act. Mr. Ormonde contends that other documents should exist and should be produced. The Agency asserts that the documents that Mr. Ormonde refers to cannot be identified or located or have been found not to exist. Mr. Ormonde made submissions that the evidence of the individuals to whom the summonses have been directed is essential to provide an explanation for the Agency's failure to produce the documents that he seeks. 7 Mr Ormonde asserted that several of the officers to whom these proposed summons are directed adopted a policy whereby they did not maintain any documentary records of meetings and discussions in which matters concerning Mr Ormonde were discussed. He further asserts that such meeting and discussions took place and that, notwithstanding the policy to not maintain records, decisions were made following those meetings and discussions. Some of those decisions directly impact on Mr Ormonde. Consequently, Mr Ormonde seeks to have the officers concerned give evidence in relation to what transpired in the meetings and discussions. 8 In support of his application, Mr Ormonde argues that the term "personal information" contained within section 4 of the Privacy Act is to be given a broad interpretation. In his submission the term is sufficiently broad to encompass information and opinions held by an individual but which have not been recorded in a material form. He further argues that if that is the case then the named individuals should be summonsed to allow the information to be available before the Tribunal. 9 Section 4 of the Privacy Act relevantly provides: "(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." 10 Mr. Prince submitted that the Tribunal is undertaking a review of the Agency's conduct that was the subject of Mr Ormonde's internal review applications. The internal review that the Agency undertook reviewed the Agency's conduct relating to Mr Ormonde's original applications When Mr Ormonde's applications are considered it is apparent that the wider construction of "personal information" would only be applicable to the proposed summons direct towards Mr. Gilligan. I agree with that submission. 11 In the circumstances, I do not need to determine the issue that Mr Ormonde has raised concerning the proper construction of the term "personal information". For present purposes, in order to ascertain whether the summonses should be issued, I have proceeded on the basis of Mr Ormonde's foreshadowed case at its highest to determine whether the witnesses could provide evidence which would assist in the resolution of this dispute. On the material before me I remain satisfied that Mr. Gilligan would be unable to give relevant evidence even if the broader construction of the term "personal information" were applied. 12 At the hearing on 6 April 2004, each of the other proposed summonses was considered in turn. With respect to the proposed summonses to Ms Anderson and Mr Diakos, Mr Ormonde sought sworn statements setting out details of meetings and other discussions in which those individuals are alleged to have anticipated. Mr Prince objected to the issuing of those summonses on the basis of relevance. 13 Under the proposed summonses Mr Ormonde is seeking the creation of documents to provide details of meetings of discussions, which may or may not have taken place. In my view such documents would contribute little if anything to the issues in the substantive matter. Given the nature of Mr Ormonde's applications to the Agency and the application before the Tribunal, I agree with Mr. Prince's submission that neither Ms Anderson nor Mr Diakos would be able to give relevant evidence. 14 I have already referred to the fact that summonses previously issued to Ms Sylvia Lowe, Mr. Chris Perkins, Ms Kate Molloy and Mr. Brian Gilligan were set aside. My decision to set those summonses aside was based on my view that those witnesses would be unable to give relevant evidence. I maintain that view and do not agree that the summonses should be reissued. 15 As I understand Mr Ormonde's argument, these individuals have obligations as officers of the Agency to maintain proper records in accordance with the State Records Act 1998 and if they had complied with their obligations there would be further records which fall within the scope of Mr Ormonde's applications but to which Mr Ormonde has not been given access. I do not agree that this argument is sufficient to justify the issuing of the summonses. This is not the appropriate forum for consideration of whether or not officers of the Agency have maintained adequate records. Nor is it the forum to pursue disciplinary action against any of those officers for any other alleged breaches of their obligations as public service employees. 16 The proposed summons directed towards Mr Little is intended to have Mr Little appear at the hearing to give evidence about Ms Molloy's and other officers' "routine practices of preferring to deal with controversial matters by phone and of taking extensive notes in [his or] her diary pertaining to meetings and discussions". Mr Little was not represented at the hearing and therefore I do not have his evidence about his attitude to the summons. Mr Ormonde's evidence is that as an officer of the PSA Mr Little is reluctant to give evidence in support of one member of the PSA (Mr. Ormonde), where the evidence concerns another member of the PSA (Ms Molloy). Mr. Ormonde said that in the circumstances Mr Little would not attend unless he was summonsed. 17 Mr Prince submitted that given the nature of the application before the Tribunal, there would be no legitimate basis for Mr Little's evidence. It would extend the proceedings and have no probative value. I agree with that submission. On the material before me I am not satisfied that Mr Little would be able to give relevant evidence and therefore the application for the issue of the summons directed towards him should be refused. I note however, that this position could change if Mr Little were to provide a statement that could be admitted in evidence. 18 The proposed summonses directed towards Mr Dalton and Mr. Solomon concern two grievance reports. I am satisfied that those reports were produced after Mr. Ormonde's applications and therefore they are not relevant to this matter. On the material before me I am not satisfied that either Mr Dalton or Mr. Solomon would be able to give relevant evidence and therefore the application for the issue of the summonses directed towards them should be refused. 19 The proposed summons directed towards Mr Sahu-Khan concern legal advice that he has provided. Mr. Prince submitted that privilege is claimed over that information. I note that documents over which privilege is claimed have been produced to the Tribunal. In my view they should not be the subject of further summons. Accordingly, the application for the issue of the summons directed towards Mr Sahu-Khan should be refused. Findings and Decision 20 On the material before me I am not satisfied that the summonsed witnesses would be able to give evidence relevant to this matter. Mr. Ormonde can only speculate about what evidence the witnesses may give and to that extent the exercise can be described as "a fishing expedition". As I have previously stated, it is open to Mr. Ormonde to present evidence that would lead the Tribunal to draw the inference of "routine practices", that documents were created as a result of those "routine practices" and that the Agency has not produced those documents. In my view, compelling the witnesses to provide evidence is not necessary for disposing fairly of the proceedings. 21 Having formed that view, the appropriate order is that the summonses should not be issued. Order 22 Mr. Ormonde's application for leave to have summonses issued to Ms Helen Anderson, Mr Vernon Dalton, Mr Arthur Diakos, Mr. Brian Gilligan, Mr Stewart Little, Ms Sylvia Lowe, Ms Kate Molloy, Mr. Chris Perkins, Mr Rasheed Sahu-Khan and Mr Carl Solomon is refused.