Court of Appeal Supreme Court New South Wales Medium Neutral Citation: AGU v Commonwealth of Australia [2013] NSWCA 333 Hearing dates: On the papers Decision date: 10 October 2013 Before: Bathurst CJ; Beazley P; Basten JA Decision: 1 Vacate order 3 made on 23 July 2013; 2 Direct the Commonwealth to file its written submissions of no more than 10 pages in support of its notice of contention on or before 31 October 2013; 3 Direct the applicant to file its written submissions of no more than 10 pages in response on or before 21 November 2013; 4 Otherwise confirm orders and directions made by the Court on 23 July 2013; 5 Confirm date set down for hearing on 9 December 2013. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - civil - matter arising under the Constitution - Judiciary Act 1903 (Cth), s 78 - Uniform Civil Procedure Rules 2005 (NSW), rr 1.22, 1.23 - severability of proceedings from the Constitutional matter. PROCEDURE - civil - Civil Procedure Act 2005 (NSW) - obligation of the Court to facilitate the just, quick and cheap resolution of the real issues in the proceedings - division of hearing into separate parts - all issues to be heard at the same time. Legislation Cited: Civil Procedure Act 2005 (NSW), s 14, s 56(2) Health Records Information and Information Privacy Act 2002 (NSW), Sch 1 Interpretation Act 1987 (NSW), s 31 Judiciary Act 1903 (Cth) Privacy and Personal Information Protection Act 1998 (NSW), s 55 The Constitution, s 109 Uniform Civil Procedure Rules 2005 (NSW), rr 1.22, 1.23 Cases Cited: Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [1999] FCA 1151; 95 FCR 292 Oreb v Professional Services Review Committee No 298 [2004] FCA 1408 Sagacious Legal Pty Limited v Wesfarmers General Insurance Ltd (No 3) [2010] FCA 428; 184 FCR 516 Tavalu v Minister for Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1027 Category: Interlocutory applications Parties: AGU (Applicant) Commonwealth of Australia (Respondent) Representation: Solicitors: I Chatterjee (Applicant) N Gouliaditis (Respondent) File Number(s): CA 2013/48192 Decision under appeal Citation: AGU v Commonwealth of Australia [2013] NSWADTAP 3 Date of Decision: 2013-01-21 00:00:00 Before: Magistrate N Hennessy, Deputy President File Number(s): 129030 Judgment 1THE COURT: The applicant in this matter brought proceedings against the Commonwealth, alleging that the Commonwealth had breached the Health Privacy Principles which are set out in the Health Records Information and Information Privacy Act 2002 (NSW), Sch 1, in that Centrelink, without his knowledge or consent, provided certain personal information about him to a third party. The applicant had sought relief under the Privacy and Personal Information Protection Act 1998 (NSW), s 55. It was central to this argument that the State Acts applied to Centrelink, which is an agency of the Commonwealth. This raised a question of construction of those Acts (the construction issue). 2The Administrative Decisions Tribunal rejected the applicant's claim on the basis that the Privacy and Personal Information Protection Act did not bind Centrelink as an agency of the Commonwealth: AGU v Commonwealth of Australia [2012] NSWADT 179. As the applicant failed on the construction issue, the Administrative Decisions Tribunal did not proceed to determine the contention raised by the Commonwealth that the State Acts were inconsistent with the Commonwealth legislation and, therefore, invalid: see the Constitution, s 109. 3The applicant's appeal to the Appeal Panel of the Administrative Decisions Tribunal was dismissed: AGU v Commonwealth of Australia [2013] NSWADTAP 3. 4The applicant filed a summons for leave to appeal in this Court. In its response to that summons, the Commonwealth indicated that if the applicant was granted leave to appeal, it proposed to file a notice of contention raising the following two matters: "1 To the extent either the Privacy and Personal Information Protection Act 1998 (NSW) or the Health Records Information and Information Privacy Act 2002 (NSW) purport to apply to the respondent, they are to that extent invalid as inconsistent with the Privacy Act 1988 (Cth) and the Social Security (Administration) Act 1999 (Cth) by the operation of s 109 of the Constitution. 2 To the extent the Privacy and Personal Information Protection Act 1998 (NSW) purports to confer jurisdiction on the Administrative Decisions Tribunal to determine whether [the Commonwealth] has contravened the Health Records Information and Information Privacy Act 2002 (NSW), the former Act is to that extent invalid as contrary to Chapter III of the Constitution." 5The summons for leave to appeal was listed for hearing on 23 July 2013. On the hearing of the summons for leave to appeal, the Court directed that the summons be heard concurrently with the appeal. The Court also directed that the applicant's appeal relating to the proper construction of the State Acts be determined first and separately from the issues proposed to be raised on the notice of contention. To that end, the Court directed that the foreshadowed notice of contention be heard at a later date should the construction issue be resolved in the applicant's favour. 6The Court understands both parties were in agreement with this course, on the basis there would be a potential savings of costs in proceeding that way. 7On 28 August 2013, the matter was listed for directions to determine whether it should proceed in a manner directed by the Court on the listing of the summons for leave to appeal. 8In the course of the directions hearing, the legal representative for the Commonwealth informed the Court that it had not served s 78B Notices upon the Attorneys General of the States and Commonwealth: see Judiciary Act 1903 (Cth), s 78B. He informed the Court that it had been decided not to serve those notices pending the determination of the construction issue. If the applicant failed on that issue, the matters intended to be raised by the notice of contention would become moot. The legal representative for the Commonwealth expressed confidence that that would be the outcome of the construction issue. 9Both parties again expressed concern that they not incur unnecessary costs, although the legal representative for the applicant accepted that constitutional issues may impact upon the construction of the State legislation. 10The Court that has been allocated the hearing of the matter has now had an opportunity to consider the manner in which the appeal should be heard. Notwithstanding the parties' preferred course that there be a separate determination of the construction issue, as there was potentially a costs saving to them in doing so, there are other considerations of which the Court must take account. 11The first relates to the present position taken by the Commonwealth in respect of service of s 78B Notices. 12Section 78B provides, relevantly, that where a cause is pending in a court involving a matter arising under the Constitution, the court should not proceed unless and until it is satisfied that notices have been given under the section to the Attorneys General of the Commonwealth and the States and the Attorneys General have had a reasonable time to consider the notice. 13Pursuant to the Uniform Civil Procedure Rules 2005 (UCPR), r 1.22, where proceedings pending in court involve a matter arising under the Commonwealth Constitution, or involving its interpretation within the meaning of s 78B, the party raising the matter must file a notice of a Constitutional matter. 14UCPR, r 1.23 provides for the time in which s 78B Notices must be given. In particular, subrule (1) provides that if the Constitutional matter arises before any directions hearing, the notice must be given at least two days before the date of a directions hearing. There was a directions hearing in this matter before the Registrar on the first return date of the summons for leave to appeal. There was another directions hearing before me on 28 August 2013. 15The Court has power to waive the requirements of the rules: the Civil Procedure Act 2005, s 14. The Commonwealth has not made any application that UCPR, r 1.23 be waived, although it may have been implicit in the Court's direction made on the occasion of the hearing of the summons for leave to appeal that the rule was waived. 16The second matter of concern to the Court is whether a State Act can be construed conformably within the limits of State power (see the Interpretation Act 1987 (NSW), s 31) or whether there is inconsistency. These are often closely interlinked questions which cannot properly be severed. 17Section 78B(2)(c) provides that a Court may continue to hear evidence and argument in respect of matters that are severable from any matter arising under the Constitution or involving its interpretation. In Sagacious Legal Pty Limited v Wesfarmers General Insurance Ltd (No 3) [2010] FCA 428; 184 FCR 516 Rares J, at [16], noted that the court was entitled to embark upon a hearing provided that it could be conducted in a way that severed the matters arising under the Constitution or involving its interpretation until the proceedings reached the point where such severance could not be maintained. 18To the same effect was the observation of French J in Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [1999] FCA 1151; 95 FCR 292 that s 78B(2)(c) was a facility to continue proceedings on matters severable from the Constitutional matter. See also Oreb v Professional Services Review Committee No 298 [2004] FCA 1408 at [17]-[21]; Tavalu v Minister for Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1027 at [7]. 19However, in each of those cases, the Court was satisfied that there were issues that were truly severable. That cannot be said in this case. It is not certain that the proposed s 109 inconsistency argument is necessarily severable from the construction issue. 20There is another matter to which reference should be made. The Civil Procedure Act, s 56 requires the Court to give effect to the overriding purpose of the Act and of rules of court so as to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Section 56 is not only directed to the position of the parties to the litigation. It is also directed to the proper application of the resources of the Court: see ss 56(2). Parties to an appeal should not have any expectation that the appeal can be divided into several parts to be heard separately by the Court. 21For those reasons, the Court considers that the entire matter should proceed for hearing on 9 December 2013. Accordingly, it makes the following orders: 1 Vacate order 3 made on 23 July 2013; 2 Direct the Commonwealth to file its written submissions of no more than 10 pages in support of its notice of contention on or before 31 October 2013; 3 Direct the applicant to file its written submissions of no more than 10 pages in response on or before 21 November 2013; 4 Otherwise confirm orders and directions made by the Court on 23 July 2013; 5 Confirm date set down for hearing on 9 December 2013. ********** 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: 10 October 2013