Administrative Decisions Tribunal New South Wales Medium Neutral Citation: SQ v Department of Justice and Attorney General [2011] NSWADT 266 Hearing dates: 18 November 2010, 9 March 2011, submissions closed 16 March 2011 Decision date: 24 May 2011 Jurisdiction: General Division Before: Judicial Member K Fitzgerald Decision: The Tribunal determines to take no further action on this matter Catchwords: Personal information "held" Legislation Cited: Privacy and Personal Information Protection Act 1998 Administrative Decisions Tribunal Act 1997 State Records Act 1998 Cases Cited: AT v Commissioner of Police NSW [2009] NSWADTAP 1 AT v Commissioner of Police (NSW) [2010] NSWCA 131 Attorney -General New South Wales v World Best Holdings Ltd [2005] NSWCA 261 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Director-General, Department of Education and Training v MT (2006) 67 NSWLR 237 NS v Commissioner, Department of Corrective Services [2004] NSWADT 263 Ormonde v NSW National Parks and Wildlife Service (No 2) [2004] NSWADT 253 Vice Chancellor Macquarie University v FM [2005] NSWCA 192 ZR v NSW Department of Education and Training (GD) [2009] NSWADTAP 69 Category: Principal judgment Parties: Applicant - SQ Representation: Applicant Representative - Mr Howard Respondent Representative - Ms Mahoney Privacy Commisioner - Mr McAteer File Number(s): 103004 REasons for decision 1This matter involves an application by SQ (the 'Applicant') for the review of the conduct of the Department of Justice and Attorney General (the 'Department'). It is alleged that the Department contravened section 18 of the New South Wales Privacy and Personal Information Protection Act 1998 (the 'PPIP Act') and clauses 9 and 15 of the Attorney General's Code of Practice. 2It was alleged by the Applicant, and not disputed by the Department, that Mr Peter McKenzie, in his capacity as Registrar of the Local Court, had witnessed the making of a power of attorney (the "POA") by the Applicant in 2000. It was also alleged by the Applicant and not disputed by the Department that in late 2009, during proceedings in which the Applicant's father was the plaintiff, Mr McKenzie disclosed to a third party (the defendant in those proceedings) the fact that he had witnessed the Applicant's POA (the "Disclosure"). 3The Applicant alleges that the Disclosure is a breach of the PPIP Act for which the Department is responsible and seeks a range of orders. The Department denies that allegation. PRELIMINARY QUESTIONS FOR DETERMINATION 4The parties agreed that there were two preliminary questions for the Tribunal: 1) whether the Applicant was entitled to amend her application to the Tribunal; 2) whether the Department "held" the necessary information for the purposes of the PPIP Act. TRIBUNAL'S JURISDICTION 5Section 55 of the PPIP Act and section 37 of the Administrative Decisions Tribunal Act 1997 ('the ADT Act') give the Tribunal jurisdiction to review the conduct that is the subject matter of the complaint. Delay Background 6The initial complaint to the Department by the Applicant was made on 11 August 2009. It requested that the Department investigate a breach of sections 18 and 62 of the PPIP and the Attorney General's Code of Conduct as a result of the Disclosure. 7The internal review was dated 9 October 2009 and the Applicant had received it by 14 October 2009. The internal review included reference to the Applicant's rights of review by the Tribunal. There was some further correspondence between the parties in October-December not directly associated with a decision as to whether to seek Tribunal review. 8On 18 January 2010 the Applicant filed her application with the Tribunal for review of the conduct of a public agency relying on s18 of the PPIP Act (the "Application"). 9On 16 March 2010 the Applicant's Counsel indicated that he would be making an application to bring the Application out of time though this was not ultimately made. 10The Applicant makes reference in Annexure A of her Application to the fact that there was delay in making the application yet no formal application was made to the Tribunal to extend the time by her Counsel nor was the issue raised by her legal representatives in either written or oral submissions. 11The Department did not raise the delay other than in the context of submissions, dated 19 October 2010, responding to the Applicant's proposed amended Application. Both parties proceeded on the basis that the only two preliminary issues for hearing were those stated above. Determination 12There is no statutory time limit on the making of an application for review but it has been held that there is an implied requirement in section 55 (1) of the ADT Act that any application be made within a reasonable time. Sixty (60) days is typically considered to be "the ordinary outer limit of this" AT v Commissioner of Police NSW [2009] NSWADTAP at 34, though this will depend on the circumstances of the case: AT v Commissioner of Police (NSW) [2010] NSWCA 131. 13Although well beyond the 60 day guide, given the history of the matter and conduct of the parties, the Tribunal determines that there is no real prejudice to the Department in the delay and that in all the circumstances it is reasonable to determine the application. Amended Application Background 14Each party provided written submissions in relation to this issue. The Tribunal has considered the written submissions. 15In early October 2010, the Applicant via her legal representative indicated that she wished to amend the Application and, in accordance with orders made by the Tribunal, on 12 October 2010 the Applicant filed a proposed amended application and submissions in support. The proposed amendment sought to add an allegation that the Department contravened section 12(c) of the PPIP Act (the "Amendment Application"). The Applicant also raised dissatisfaction with the Department's failure to refer the Disclosure to the prosecuting authorities under section 62 of the PPIP. 16To support the Amendment Application, the Applicant relies on sections 53 and 55 of the PPIP Act and section 81 of the ADT Act. She claims that the relevant conduct is the Disclosure; that conduct was the subject of the application for internal review; and because the Amendment Application relates to the Disclosure it is properly conduct within the ambit of the Tribunal. 17The Applicant also claims that the Tribunal has the broad power to make any amendments to the proceedings that it considers necessary in the interests of justice under section 81 of the ADT Act and that "ventilation of the information principle under section 12(c) and thus the proposed amendment should be allowed in the interests of justice". 18The alleged contravention of section 12(c) was not raised in the 11 August 2009 correspondence by the Applicant which is described in Annexure A of the Application as her complaint, that correspondence incorrectly referred to section 14 as dealing with release of personal information without consent. 19Clause 12(c) was not considered in the internal review nor was it raised by the Applicant in correspondence of 16 October 2009 and 17 November 2009 following receipt of that internal review decision, nor was it contained in the Application. The Application relied solely on section 18 of the PPIP and the Attorney General's Code of Practice. Determination 20There is no provision in the ADT Act or the PPIP Act or regulations to that legislation for the filing of an amended Application. 21As stated in ZR v NSW Department of Education and Training (GD) [2009] NSWADTAP 69 at 50: 'The parameters of the matters that can be considered by the Tribunal are set by the internal review process. The scope of the internal review process is set by the original complaint to the agency, or the complaint as varied following consultation between the agency and the complainant. See generally, KO & KP v Commissioner of Police, New South Wales Police [2005] NSWADT 18 at [10] ff; and Department of Education and Training v ZR (No 2) [2009] NSWADTAP 44 at [18].' 22The Tribunal agrees with the Department that the conduct that is the subject of the Application was the Disclosure. The conduct was not the failure of the Department to take adequate safeguards although the internal review noted that, even had the Department held the information, any disclosure that was made by Mr McKenzie was outside his official functions and in breach of the policies and safeguards the Department had in place. 23It must be that, particularly in the case of a represented Applicant, if specific breaches are identified as arising from conduct those breaches define the complaint and new breaches arising from the same conduct cannot later be added absent agreement of the parties. The lack of certainty if an alternative approach were adopted, namely allowing additional breaches arising from the same conduct, is not in the interests of justice. 24Section 81 reads as follows: "81 Amendments and irregularities (1) The Tribunal may, in any proceedings before it, make any amendments to the proceedings that the Tribunal considers to be necessary in the interests of justice. (2) Any such amendment may be made: (a) at any stage of the proceedings (including the commencement or purported commencement of proceedings), and (b) on such terms as the Tribunal thinks fit (including, if it can award costs in the proceedings, terms as to costs). (3) If this Act, the regulations or a rule of the Tribunal is not complied with in relation to the commencement (or purported commencement) of proceedings or conduct of proceedings before the Tribunal, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings or any decision in the proceedings. (4) For the purposes of subsection (3), the Tribunal may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings." 25Section 81 is procedural in nature, see Attorney -General New South Wales v World Best Holdings Ltd [2005] 261 and does not go so far as to override the statute or an absence of jurisdiction. 26In addition, the Amended Application was sought to be filed over a year after the internal review was completed. The Applicant was legally represented including by Counsel and in these circumstances such delay is not reasonable nor in the interests of justice, particularly given the delay associated with filing the original Application. 27The Applicant made no submission in relation to the jurisdiction of the Tribunal in relation to the AG's Code of Conduct nor section 62 of the PPIP Act. The Department refuted both aspects of jurisdiction and the Tribunal agrees with the Department position. 28The Tribunal was provided with and cannot see any basis for jurisdiction to review a departmental policy under the PPIP Act. The Tribunal has no jurisdiction to entertain a complaint under section 62 of the PPIP Act. See Ormonde v NSW National Parks and Wildlife Service (No 2) [2004] NSWADT 253 at [105]. 29The Tribunal determines not to allow the proposed Amended Application. Was the information held? LEGISLATIVE FRAMEWORK 30Section 18 is titled "Limits on disclosure of personal information" and reads: "(1) 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, unless: (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it." 31Section (4) provides that: "For the purposes of this Act, personal information is "held" by a public sector agency if: (a) the agency is in possession or control of the information, or (b) the information is in the possession or control of a person employed or engaged by the agency in the course of such employment or engagement, or (c) the information is contained in a State record in respect of which the agency is responsible under the State Records Act 1998." 32The Department concedes that the information (the fact that Mr McKenzie swore the POA) was personal information for the purpose of section 4 of the PPIP Act. However, relying on Vice Chancellor Macquarie University v FM [2005] NSWCA 192, the primary position of the Department is that the Department as Mr McKenzie's employer did not hold the information as it was only in his mind. 33It is the Department's alternative position that the disclosure of Mr McKenzie was a "frolic" of his own for which the Department is not liable under the relevant legislation, Director-General, Department of Education and Training v MT (2006) 67 NSWLR 237. 34At issue was whether Mr McKenzie copied the POA at the time that he witnessed it. 35Each party led evidence which is described below. There was also a preliminary issue as to whether Mr McKenzie could give evidence by phone. Evidence EVIDENCE BY TELEPHONE 36The Department sought that Mr McKenzie be permitted to give evidence by telephone. This position was resisted by the Applicant. 37The Department asked that the evidence to support the application for evidence by phone remain confidential and be restricted to the Applicant's Counsel and not herself or her solicitor (her solicitor being her father). The Applicant's Counsel declined to review the confidential affidavit if access to it was to be restricted to him. 38Having reviewed the confidential affidavit the Tribunal held that, given the nature of the confidential evidence, that is medical evidence to support evidence being given by phone, there would be no prejudice to the Applicant in it being restricted to the Applicant's Counsel. The relevant issue for the Applicant's Counsel to consider was whether the evidence demonstrated that an illness existed such as would prevent Mr McKenzie attending the Tribunal. It was not necessary for the Applicant and her father solicitor to be aware of the precise nature of an illness to give instructions to their Counsel. 39Further the Tribunal was satisfied on the basis of the confidential evidence which comprised two medical certificates from two different doctors, one of which related to Mr McKenzie and one to a family member, that Mr McKenzie was unable to attend the Tribunal at that time to give evidence in person. Also relevant to the Tribunals' decision were the following: a) although the presumption is that evidence will be given in person, the practice of the Tribunal does permit evidence to be given by telephone (Practice Note 10); b) the fact that given the limited nature of the evidence given in Mr McKenzie's statement, the Applicant would be able to adequately cross-examine the witness; c) his evidence was factual in nature in relation to a discrete point and did not give rise to issues of credit. d) the fact that the illness was one that would not necessarily end at a particular point in time (though the certificate was for a set period of time); e) relevant to the hearing before the Tribunal, the document that was to be put to Mr McKenzie was the power of attorney. He had seen it previously and it was not contested that he signed the document, on the date stated with the conveyancing certificate attached. f) that it was open to the Applicant's Counsel to make further submissions as to the weight to be given to any evidence received by phone and to seek further cross-examination of Mr McKenzie in person if he felt that he had not been able to cross examine Mr McKenzie adequately. 40Taking these factors into account the Tribunal decided that the evidence of Mr McKenzie could be provided by phone. It also remained open to the Applicant's Counsel to review the confidential material but he did not avail himself of that opportunity. 41The Department also requested that Ms C Carter, Senior Registrar Newcastle Court, and Mr D Bultitude, Register of Cessnock Courthouse, provide evidence by telephone. These requests were again resisted by the Applicant and refused by the Tribunal. The evidence of Ms Carter was not ultimately relied on. Evidence as to whether or not the information was 'held' 42Evidence for the Department was provided by Mr McKenzie. He recalled witnessing the power of attorney in question but could not recall other specific details of the event including the date, the location of the courthouse in question or other surrounding circumstances. He did recall witnessing a POA for the Applicant and his standard practice in relation to witnessing such documents. 43Mr McKenzie acknowledged that his recollection of the day in question was not strong but that he knew that his practice was never to copy documents (other than where required such as affidavits) and that this would not have changed regardless of the court house that he operated from. 44Mr McKenzie was clear as to his practice in relation to the making of copies of power of attorney's and stated on three occasions in response to cross-examination that he did not make copies of such documents and had a practice of never doing so. He also stated that he had no recollection of taking a copy on the day in question. The Tribunal is satisfied as to this evidence. 45The Department also relied on evidence of Mr Craig Norman, Principal Court Development Officer, as to the general procedures in relation to the copying of documents during the period. Mr Norman did not work at either Cessnock or Kirri Kirri and so his evidence bears little relevance to the specific factual question in dispute. However, the Tribunal notes that his evidence was consistent with that of Mr McKenzie in relation to the standard practice for a clerk to witness the document (and where relevant certify it) and return each without copying to the principal. He also noted that the legislative requirement to keep a copies did not commence until 16 February 2004. 46Mr Damien Bultitude gave two statements on behalf of the Department, namely 24 December 2010 and 2 March 2011. His evidence that he searched the relevant registry for any power of attorney witnessed by Mr Peter McKenzie and found none was consistent and compelling, including under cross-examination, and is accepted by the Tribunal. 47Mr Bultitude's evidence was also consistent with Mr McKenzie's and Mr Cameron's in relation to the standard practice with respect to copying documents namely that there was no requirement to keep copies of powers of attorney until early 2004. He noted that his personal practice to keep copy started in 2003 because of two instances where powers of attorney he had signed were changed or challenged. 48The Applicant's mother, also a solicitor, gave evidence on her behalf. Her evidence was at times defensive, particularly in relation to whether or not the form of the POA was accurate. At its highest, her evidence goes no further than that Mr Mc Kenzie said he was going to make a copy of the POA and left the room. She did not see him copy the POA not did she see a copy of the POA in his hand when he returned. 49The Applicant provided a statement but was not required for cross examination by the Department. She gave no evidence as to the details of the meeting with Mr McKenzie; the conversations that were had; whether Mr McKenzie left the room or whether the POA was copied. Factual Determination 50Neither the applicant nor the Department carries a burden of proof to prove or disprove any fact: NS v Commissioner, Department of Corrective Services [2004] NSWADT 263. However, the Tribunal must feel an actual persuasion of the occurrence or existence of a fact before it can be found; as put by Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362, "it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal". 51The Tribunal is not satisfied that the POA was copied at the time it was witnessed. Further the Tribunal is not satisfied that a copy of the POA was ever retained by the Department. The Tribunal is satisfied that the POA is not currently held by the Department. Discussion 52In light of the Tribunal's findings above, the information in question, namely the Disclosure, was held only in the mind of Mr McKenzie. 53In Vice-Chancellor Macquarie University v FM [2005] NSWCA 192 it was relevantly held at paragraph 34in relation to information held in the mind of an employee: "It is sufficient for the present case to concentrate on the definition of when personal information is "held" contained in s4(4). Such information is either a "State record" for which an agency is responsible under the State Records Act 1998 or information in the "possession or control" of either the agency itself or an employee of, or person engaged in, the agency, acting in the course of such employment or engagement. The natural and ordinary meaning of the words "possession or control" does not, in my opinion, extend to material held only in the mind of a person. 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 her or his mind." 54He concluded at paragraph 40: "The primary context of the legislative scheme which gives meaning to the words "holds personal information" is Pt 2 Div 1, with the definitions in s4. That context strongly indicates that the words do not extend to information held in the mind of an employee." 55The Applicant seeks to distinguish Vice-Chancellor Macquarie University v FM on the basis that in that decision the information was "never recorded in any manner". The Tribunal does not agree with that distinction. The Disclosure was the fact the POA had been witnessed, a fact observed not recorded. The fact that the observation was of an act that involved a document (eg the witnessing of that document) does not change the analysis where no copy of the document was kept. 56The Tribunal therefore finds that as the relevant information was not held by the Department there is no breach of the PPIP Act. 57The Applicant further claims that regardless of whether or not the POA was copied by Mr McKenzie, the POA when witnessed and certified by the Clerk of the Court became a "State record" within the meaning of section 3 of the State Records Act 1998 such that section 4(4) of the PPIP Act applies. An essential element of section 3 is that the record be "kept". This is not satisfied because of the factual findings above which means that the argument goes no further. 58It is unnecessary for the Tribunal to consider the second position of the Department, namely that Mr McKenzie was acting on a "frolic" or outside his departmental duties. Conclusion 59In the circumstances of this matter the Tribunal is not satisfied that the Department is in breach of the legislation as alleged. It follows that the correct and preferable decision is to take no action on the matter. ORDER 60The Tribunal determines to take no further action on this matter. I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal. Registrar 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. Decision last updated: 18 November 2011