Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ALZ v Lismore City Council [2016] NSWCATAP 190 Hearing dates: 11 August 2016 Date of orders: 11 August 2016 Decision date: 11 August 2016 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member Dr J Renwick SC, Senior Member Decision: (1) The Appeal is allowed. (2) The decision below dated 2 February 2016 is set aside. (3) The matter is remitted in whole to a differently constituted Tribunal for reconsideration according to law either with or without further evidence as the member hearing the matter may determine. Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL – privacy – personal information – jurisdiction – Appeal Panel – inadequacy of reasons – decision set aside Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Privacy and Personal Information and Protection Act 1998 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Hagh v Kong [2014] NSWCATAP 47 Texts Cited: None Category: Principal judgment Parties: ALZ (Appellant) Lismore City Council (Respondent) Representation: Appellant in person Mr Britt for Respondent Mr McLaughlin for the Privacy Commissioner (with leave) File Number(s): AP 16/11048 Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Administrative and Equal Opportunity Division Citation: [2016] NSWCATAD 20 Date of Decision: 2 February 2016 Before: S Montgomery, Senior Member File Number(s): 1410345 REASONS FOR Decision Background 1. Although this appeal was resolved by consent at the hearing, it is nevertheless desirable to say something about the matter, without expressing a view as to the ultimate result the Tribunal should come to when there is a full hearing of the matter. 2. The appeal concerned the operation of the Privacy and Personal Information and Protection Act 1998 (NSW) ('the Act'). 3. On 31 March 2014, the appellant, who has been given the pseudonym of ALZ, complained about the behaviour of her former employer, Lismore City Council (the Respondent). ALZ alleged the Act had been breached and that she was entitled to relief. 4. In particular, ALZ complained about the inclusion of allegedly unfavourable, misleading and irrelevant personal information in an internal review decision in September 2013, being certain staff statements, interviews, and a formal warning letter, and that the Council then caused that information to be disclosed to others, including the Administrative Decisions Tribunal (ADT), the Privacy Commissioner, and Local Government NSW. 5. Second, in a subsequent statement to the ADT, a particular person (the third person) allegedly: 1. Used and disclosed incorrect, misleading and unfavourable personal information about ALZ to imply she had been performance managed for dishonesty; 2. Used and disclosed irrelevant information about a worker's compensation claim; and 3. Used and disclosed health information from a psychiatric report "misrepresenting, discussing, paraphrasing and quoting from the report against my interests to further her own". 1. There was a further complaint about the third person's use of email in September 2012. 2. For convenience, we describe the three issues as follows: 1. The internal review decision issue; 2. The third person's statement issue; and 3. The third person's email issue. 1. The alleged conduct occurred in September 2012, September 2013, and October 2013. ALZ had sought an internal review seeking relief under the Act including: 1. Deleting and destroying the doctor's report; 2. Ensuring that the reviewer measured the conduct complained of against the privacy principles but did not access a copy of the doctor's report as the content of the report containing ALZ's psychiatric health information; 3. Retracting or correcting certain information in the third person's statement; 4. Notifying the Office of the Privacy Commissioner, this Tribunal, and an officer of Local Government NSW of the retraction or correction; 5. Training for the Respondent's staff; and 6. An apology. 1. One of the main issues concerning breach of the Act was whether the Council was exempt from compliance with various privacy and personal information protection principles because of the circumstances in which the collection, use or disclosure of personal information had occurred. Reasons 1. The Respondent did not conduct the requested review. External review was then sought in this Tribunal: see s 55 of the Act. 2. The matter came before the Tribunal which made 'jurisdictional' determinations as follows: 1. The Tribunal has no jurisdiction to review those aspects of part (a) of the application to which the section 41 Direction applies. The Tribunal determines to take no further action in regard to the remainder of part (a) of the application. 2. Part (b) of the application is dismissed for want of jurisdiction. 3. Part (c) of the application is remitted for redetermination by the Council. The review is to be completed within 60 days from the date of this decision. The matter is listed for a further planning meeting on Tuesday 19 April 2016 at 9:30 am. 1. The appellant appealed to the Appeal Panel. Among the complaints in the Notice of Appeal was a complaint that the Tribunal 'did not refer to the evidence and make findings', or 'did not state its reasons' and otherwise complained about inadequacy of reasons. 2. There is no doubt that there is a requirement to give proper reasons and a complaint about inadequacy of reasons gives rise to a question of law bearing in mind the requirement in s 62 of the Civil and Administrative Tribunal Act to give reasons. 3. In Collins v Urban [2014] NSWCATAP 17 (9 April 2014), an Appeal Panel which included the President, said, in terms which are apt for this case: Section 62 provides: (1) The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings. (2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made. (3) A written statement of reasons for the purposes of this section must set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. (4) Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party. Section 62 establishes a regime under which the Tribunal is not under an express statutory obligation to provide reasons for a decision unless a party makes a request for reasons under s 62(2) but the Tribunal may and in many cases does prepare and give reasons for decision, whether oral or written, without a request to do so from the parties, consistently with s 62(4). A provision such as s 62 of the Act does not, however, define exhaustively when there is a duty to give reasons or the extent of that duty. One reason why reasons are generally required, notwithstanding a provision such as s 62, is that if reasons for decision are neither sought nor prepared and an appeal or application for leave to appeal is lodged, the findings of fact and legal reasoning of the decision maker at first instance would not be available to the appellate body by way of written reasons. In many instances not having findings of fact and legal reasoning explicitly available may render effectively worthless any appeal right because the appellate body does not have a statement of the findings of fact, the relevant law and explanation of how the law was applied to the facts as found, by the decision maker at first instance. It was held in Pettitt v Dunkley [1971] 1 NSWLR 376 at 387 (per Moffitt JA, Manning JA agreeing) that: The force of the authorities, which in various ways say that the judge or magistrate at first instance in particular cases ought to have given reasons, is that, as part of his judicial duty and apart from any express requirement of any statute, he ought to have given reasons for the decision in question. I think there is duty upon a judge or magistrate, at least at first instance, in an appropriate case and in appropriate circumstances to give reasons for decision such as will facilitate a litigant, who may be aggrieved, exercising rights he may have to appeal. In Carlson v King [(1947) 64 WN (NSW) 6] Jordan CJ in delivering the decision of the Full Court said: "It has long been established that it is the duty of a court of first instance, from which an appeal lies to a higher court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision. [...]" The judgment otherwise makes it clear that this statement is directed to the general judicial duty of a judge of a court from which an appeal lies, whether or not a provision such as s. 144(3) [which in effect required a judge upon request to provide reasons] exists or not. It can be observed that Jordon CJ in the passage quoted contemplates that the relevant duty may be discharged not only by giving oral or written reasons for a decision but also by preparing a suitable record of the evidence, law and reasoning so that an appellate body is properly informed if it is required to consider the matter on appeal. The duty in relation to reasons endorsed in Pettit has been held to apply not only to Courts but also to other judicial or quasi-judicial tribunals or bodies - see for example Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372. The other basis upon which it has been held that reasons are generally required to be given was recently reiterated by the Court of Appeal in Keith v Gal [2013] NSWCA 339 (per Gleeson JA at [109]) as being that failure to provide sufficient reasons promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice, citing Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 442 per Meagher JA. If, however, the parties have the right to request written reasons but do not do so, this basis for generally requiring reasons to be given may be of less significance but it continues to apply. Further, in proceedings that are uncontested by the respondent, this consideration may also carry less weight. In relation to one of the principal predecessors of the present Tribunal, the Appeal Panel of the Administrative Decisions Tribunal (ADT) held that the principles identified above applied to that Tribunal. In Sydney Supermarkets Pty Limited v Xu [2009] NSWADTAP 28 the Appeal Panel of the ADT said at [56] - [60]: 56 The Tribunal is obliged to give adequate reasons. Appeal Panels of the Tribunal have routinely accepted the principles enunciated in the line of cases that includeSoulemezis v Dudley (1987) 10 NSWLR 247, Mifsud v Campbell (1991) 21 NSWLR 725 and Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. The Tribunal is a deliberative body engaged in the exercise of a judicial function when hearing and determining applications, giving reasons for decision and making final orders. See recently, Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372, esp at [109] ff per Basten JA. The Commonwealth authorities relating to Commonwealth tribunals are to similar effect. See, for example, Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 366; Dornan v Riordan[1990] FCA 383; (1990) 24 FCR 564 at 568; Edwards v Guidice [1999] FCA 1836; (1999) 169 ALR 89 at [10], [43]. 60 A trier of fact is not obliged to address, and reconcile, every contradiction or inconsistency in the evidence. The law does 'not require lengthy or elaborate reasons' but it is 'necessary that the essential ground or grounds upon which the decision rests should be articulated': Soulemezis v Dudley (Holdings) Pty Ltd per McHugh JA at 280. … A number of propositions can be derived from the authorities concerning the nature and extent of the duty to give of reasons as follows: (1) notwithstanding that there have been many cases (some of which are collected in De Iacovo v Lacanale [1957] VicRp 78; (1957) VR 553, at pp 558-559) in which it has been held that it is the duty of a judge, magistrate or other relevant decision maker to state reasons, that does not mean that a decision maker must give his or her reasons in every case. There is no "inflexible rule of universal application" that reasons should be given for judicial decisions. Whilst it is no doubt right to describe the requirement to give reasons as "an incident of the judicial process", it is subject to the qualification that it is a normal but not a universal incident - Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 667 per Gibbs CJ; (2) the content and detail of the reasons for decisions to be provided will vary according to the nature of the jurisdiction which the body in question is exercising and the particular matter the subject of the decision - Wainohu v New South Wales (2011) 243 CLR 181 at [56] per French CJ and Kiefel J; (3) the administration of justice in this regard requires a pragmatic and functional approach to the obligations imposed upon decision makers at first instance - Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [46] per Basten JA; (4) not only is the obligation not universal in nature, but it is variable in its content and whilst transparency in decision-making is an important value, it is not cost free, and may involve separate parameters of quantity and quality - Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] per Basten JA. (emphasis added) 1. In this appeal, it was not possible from a reading of the reasons to fully understand the nature of the complaint made by ALZ and the circumstances in which the collection, use and disclosure had occurred, nor to determine whether the Tribunal below had correctly applied the law. In part, that is because the Tribunal failed to set out, or refer to, the evidence before it which included a number of statements from ALZ. In saying this, we do recognise that the privacy issues may call for limits on the recitation of evidence and facts that do not exist in other types of cases. 2. We adopt the approach taken by the Appeal Panel in Hagh v Kong [2014] NSWCATAP 47, namely: [22] Insofar as Collins v Urban [2014] NSWCATAP 17 sets out mandatory requirements for reasons, breach of which amounts to an error of law, a question of law is raised. If a question of law is not so raised because there is a question of fact and degree, we would further grant leave for the appeal on the basis that the decision below 'was not fair and equitable' within the meaning of Sch 4, Cl 12(1)(a) of the Act, because the lack of reasons deprived the losing party of any means of determining why he lost and, on the question of discretion, because this raises, to use again the language of Collins v Urban at [84(2)] '(a) issues of principle; [or] (b) matters of administration or policy which might have general application'. 1. In those circumstances the Respondent's consent to the orders we made was appropriately given. ****** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. 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: 26 August 2016