Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CYL v YZA [2017] NSWCATAP 105 Hearing dates: 11 April 2017 Date of orders: 15 May 2017 Decision date: 15 May 2017 Jurisdiction: Appeal Panel Before: K O'Connor, AM, ADCJ, Deputy President, Appeals G Walker, Senior Member Decision: (1) Appeal by CYL: Dismissed (2) Appeal by YZA: Allowed. In respect of that appeal, 1. Order (1) made in the decision under appeal is set aside, as are the related prior orders made 26 August 2016 and 23 November 2016. 2. The following order is made in substitution The reasons for decision dismissing the applicant's substantive application in this matter, in the form issued to limited persons on 26 August 2016 ('the unexpurgated reasons'), are not to be released for publication; and the disclosure of the reasons in that form is to be restricted to these persons: (a) the Review Applicant, (b) the legal representatives of the Respondent at the hearing and to [name of legal officer]; and may also be released to - (c) the [a governing body] of the respondent, to a [committee of the governing body], and to (d) the Senior Executive of the respondent to whom [the named legal officer] reports; and to (e) legal representatives or legal advisers in circumstances where the unexpurgated reasons for decision in this proceeding are reasonably relevant to the provision to the Respondent of legal advice and representation, whether in connection with this proceeding or in other matters that involve dispute between the Review Applicant and the Respondent. Catchwords: PRIVACY AND PERSONAL INFORMATION – Review application dismissed – Appeal by review applicant – Agency disclosed information about internal dispute to anti-discrimination complaints agency – Review applicant had lodged a complaint with that agency - Whether disclosure in issue immune from suit – Whether Tribunal had wrongly excluded matters raised by review applicant from proper scope of the review application – Adequacy of reasons – Procedural fairness – Appeal dismissed. Australian Human Rights Commission Act 1986, s 48; Privacy and Personal Information Protection Act 1998, s 25(b). SUPPRESSION AND ANONYMITY – Orders made restricting circulation of unexpurgated reasons for decision – included restriction to the agency legal representatives presently involved in matter and the agency legal officer – Agency appeal - whether too restrictive – held Tribunal failed to address material consideration and limitation on order unreasonable – Appeal allowed - order varied to allow circulation of unexpurgated reasons to legal representatives and legal advisers where unexpurgated reasons reasonably relevant. Civil and Administrative Tribunal Act 2013, s 49, s 64. Legislation Cited: Australian Human Rights Commission Act 1986 Civil and Administrative Tribunal Act 2013 Health Records Information Privacy Act 2002 Privacy and Personal Information Protection Act 1998 Cases Cited: Absolon v NSW TAFE [1999] NSWCA 311 AIL v Department of Premier and Cabinet [2013] NSWADTAP 26 ALZ v Lismore City Council [2016] NSWCATAP 190 Assadourian v Roads and Maritime Services (GD) [2013] NSWADTAP 46 BFP v NSW Ambulance Service [2015] NSWCATAD 39 Director General, Department of Education and Training v MT [2006] NSWCA 270 House v R [1936] HCA 40; 55 CLR 499 Keith v Gal [2013] NSWCA 339 KO v Commissioner of Police, NSW Police Force (GD) [2005] NSWADTAP 56 Lonsdale v University of Sydney [2015] NSWCATAP 277 Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 MT v Director-General, Department of Education and Training [2005] NSWADTAP 77 PC v University of New South Wales (GD) [2005] NSWADTAP 72 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Russell v Russell (1976) 134 CLR 495 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69 Category: Principal judgment Parties: CYL (Appellant; Cross-Respondent) YZA (Respondent, Cross-Appellant) Representation: In person (Appellant, Cross-Respondent) Counsel: B Tronson (Respondent, Cross-Appellant) Solicitors: Thomson Geer, Lawyers (Respondent, Cross-Appellant) File Number(s): 16/43648 Publication restriction: Orders suppressing the name and identity of the review applicant (the appellant/cross respondent in these proceedings) are continued. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: CYL v YZA [2016] NSWCATAD 314; CYL v YZA (No 2) [2017] NSWCATAD 53 Date of Decision: 26 August 2016 17 February 2017 Before: P Durack SC, Senior Member File Number(s): 2105/00383634, 1510764 Decisions under appeal Reasons for Decision 1. We have two appeals before us. The first is an appeal by a review applicant in an information privacy matter against a decision of the Tribunal dismissing her application. The second is an appeal by the agency against restrictions placed on it by orders of the Tribunal that, it considers, limits its ability to disclose the Tribunal's reasons for decision in the proceedings in an unexpurgated form to its legal advisers and legal representatives. Background 1. The Tribunal dismissed CYL's application for review of the conduct of the respondent agency, YZA. CYL had made the application under the Privacy and Personal Information Protection Act 1998 (PPIPA). She put in issue conduct of the agency that she considered contravened the personal information protection principles that bound it as an agency within the meaning of PPIPA. (In what follows, we will refer for convenience to the parties, simply, as 'L' and 'the agency'.) 2. The Tribunal made its order dismissing the review application in a decision dated 26 August 2016. It made some changes to these reasons in a decision issued on 23 November 2016. We will refer to the composite of the reasons as issued 26 August 2016 and the revisions made 23 November 2016, as the Principal Decision. The Principal Decision, understood in that sense, has now been generally published, as we explain further below, with the citation CYL v YZA [2016] NSWCATAD 314. 3. On 30 September 2016 L lodged an appeal against the decision as it stood at that date. (The latter revisions did not affect its substance.) Directions were made and her appeal was fixed for hearing on 14 December 2016. 4. The issue of the degree of anonymity that should attach to the Tribunal's decision and the degree of circulation it would have inside the agency had been controversial. L was an employee of the agency at the relevant times, and her PPIPA application had as its context an internal investigation into her conduct as an employee. 5. The Tribunal has now made three decisions. The Principal Decision deals with the substance of the dispute. There are two decisions dealing with the procedural issues of anonymisation and suppression. The first is the decision of 23 November 2016, and the second is the decisions of 17 February 2017. Order 1 of that decision is in issue in this appeal. It has its background orders made in the previous two decisions. First Non-Publication Order: 1. In the decision of 26 August 2016 the Member made the following Order: Until further order, the reasons for decision, not the orders, are not to be released for publication, other to the applicant, the legal representatives of the hearing and to [agency legal officer, named]. 1. The Tribunal then gave directions to the parties, setting a timetable, on the issue of whether the reasons for decision were to be released for general publication in whole or in part. The parties filed submissions. Revised Non-Publication Order: 1. In its decision of 23 November 2016, the Tribunal revisited the order in relation to publication made in the 26 August reasons, and reduced the extent of the prohibition contained in the original non-publication order (additional words underlined below): Until further order, the reasons for decision, not the orders, are not to be released for publication other than to the Applicant, the legal representatives of the Respondent at the hearing and to [name of legal officer] and may also be released to the [a governing body] of the respondent, to a [committee of the governing body], and to the Senior Executive of the respondent to whom [the named legal officer] reports. 1. The 23 November 2016 decision is itself restricted to the parties and the closed circle to which the revised non-publication order refers. Its medium neutral citation is shown on the Caselaw site with the message, the decision is restricted. 2. In these reasons, where it is relevant, we will seek to refer to its reasons and its contents in a way that does not infringe the review applicant's interest in anonymity. 3. The Tribunal adjourned to a date to be fixed for further consideration of L's application for non-publication of the text of the reasons issued on 26 August 2016. She had submitted that there was contextual information in the Principal Decision that made it possible for people, especially agency officers, to identify her. In keeping with usual Tribunal practice, while her name had been anonymised, the agency was identified in the title of the case and parts of the reasons. This was one of her concerns. 4. As the Tribunal had therefore not disposed of L's application, the agency requested a directions hearing before the Appeal Panel on whether the appeal should be delayed until all issues at first instance could be finalised, to avoid fragmentation of the appeal. 5. Judge K O'Connor, the presiding member of this Panel, dealt with the application, and made the following directions on 30 November 2016: Further Directions in relation to the Appeal: Vacate the previous directions 6, 7, 8 made 13 October 2016 Registrar in consultation with the parties to settle now a provisional date for the Appeal hearing, preferably in late February or early March 2017, to be confirmed or otherwise at the re-list before Judge O'Connor referred to in Direction 2 below The following new directions are to take effect following publication to the parties of [the final publication decision]: To both parties to file and serve any further notice of appeal or amended notice of appeal (with a waiver of the fee) within 14 days of the publication of that decision. Re-list before Judge O'Connor for further directions in relation to any further appeal, or if there is no appeal in relation to [the final Publication Decision], for directions in relation to the appeal as it presently stands. Further Revised Non-Publication Order: 1. The Tribunal issued its final decision on 17 February 2017 after a further oral hearing on 31 January 2017: CYL v YZA (No 2) [2017] NSWCATAD 53. It will be seen that the agency's identity has been anonymised. Otherwise the Tribunal considered that the Principal Decision was suitable for general publication, taking account especially of the variations made 23 November 2016, and the level of anonymisation it now had was sufficient to protect L's privacy interests. 2. The Tribunal made the following orders: (1) The reasons for decision dismissing the applicant's substantive application in this matter, in the form issued to limited persons on 26 August 2016, are not to be released for publication and the disclosure of the reasons in that form is to be restricted to the persons referred to in the previous orders in this matter. (2) The names of the applicant and the respondent in this matter are not to be disclosed. (3) Other than the parties, no person is to be granted access to any documents in the Tribunal's file in this matter without the consent of the parties or order of the Tribunal. 1. Order (3) was made by consent: see [16]. 2. Order (2) resulted in the de-identification of the agency, giving rise to the pseudonym, YZA. The Tribunal then proceeded to publish generally the original reasons of 26 August 2016 with the citation CYL v YZA [2016] NSWCATAD 314. 3. The appeal directions were varied on 1 March 2017 as follows, the agency having indicated that it was now likely to appeal against aspects of the final non-publication orders: 1. Respondent to file and serve submissions in respect of its cross Appeal relating to the Non Publication Decision by COB 17 March 2017. 2. Appellant to file and serve submissions in reply to those submissions by COB 31 March 2017. 3. Appeal fixed for hearing, Tuesday 11 April 2017, one day. 1. The agency lodged its notice of appeal on 3 March 2017, and filed and served its written submissions on 17 March 2017. L did not file any material in reply. 2. The agency's appeal does not put in issue Orders (2) and (3) made 17 February 2017. 3. The Order in issue is Order (1) which, to reiterate, reads: (1) The reasons for decision dismissing the applicant's substantive application in this matter, in the form issued to limited persons on 26 August 2016, are not to be released for publication and the disclosure of the reasons in that form is to be restricted to the persons referred to in the previous orders in this matter. 1. When that order is, as it must be, read against the background of the original order (26 August) and the revised order (23 November 2016) it would now read if fully spelt out: The reasons for decision dismissing the applicant's substantive application in this matter, in the form issued to limited persons on 26 August 2016, are not to be released for publication; and the disclosure of the reasons in that form is to be restricted to these persons: the Applicant, the legal representatives of the Respondent at the hearing and to [name of legal officer] and may also be released to the [a governing body] of the respondent, to a [committee of the governing body], and to the Senior Executive of the respondent to whom [the named legal officer] reports. 1. In our reasons we will refer to this composite as the Non-Publication Order. 2. The agency has appealed against the failure of the Non-Publication Order to allow provision of the unexpurgated reasons to legal advisers and legal representatives. Where necessary in these reasons, we will refer to the three decisions made by the Tribunal as the 'Principal Decision' (i.e. the 26 August 2016 decision), the 'First Non-Publication Decision' (i.e. 23 November 2016) and the 'Second Non-Publication Decision' (i.e. 17 February 2017). 3. L's appeal and the agency's appeal proceeded to hearing on 11 April 2017. L's Application for Adjournment 1. At the opening of the hearing on 11 April 2017, L renewed an application she had made several times in writing since 4 April 2017 for the adjournment of the hearing. She referred to other litigation that she was involved in, and the time and effort that required. She had expected the appeal to proceed in December. She had been ready then, but was not at the moment. In relation to the agency's cross-appeal she said that she had not been able in the time allowed to prepare her written submissions in reply to the agency submissions filed 17 March 2017. Under the timetable her submissions had been due on 31 March 2017. 2. The Appeal Panel refused the application, giving oral reasons. Conduct of the Appeal Hearing 1. In relation to her appeal, L then said that she was not in a position to proceed as she did not have her papers with her. 2. The Appeal Panel advised her that it had all the material needed to consider her appeal, she had filed detailed submissions in support of her grounds and the agency had filed detailed submissions in reply, as well as an Appeal Bundle (351 pages) containing all documents relevant to the proceedings, plus Excerpts from the Transcript at first instance. 3. In relation to the agency's appeal, the Appeal Panel advised her that it would proceed on the basis that she, as the respondent, supported the orders made by the Tribunal and the reasons given in support of those orders. 4. She was asked whether she wished to make any oral submissions to the Appeal Panel in support of her appeal. She declined. 5. The hearing had commenced a little after 10.15am, beginning with the application for adjournment. 6. The agency's counsel commenced her oral submissions in reply to L's appeal around 10.40am. At about 11.30am L left the hearing room in distress, and indicated she might not be returning. The Appeal Panel adjourned the proceedings for 15 minutes. On resumption at 11.45am we were informed that the monitor had informed L of the time of resumption. She did not reappear at 11.45am. We decided to curtail counsel's oral submissions, and close that aspect of the proceedings. 7. We proceeded to hear counsel's oral submissions in support of her client's appeal on the publication question. We concluded the proceedings at 12.10am, and reserved our decision. At about 12.25am we were informed by Registry staff that L had handed in a handwritten statement a few minutes earlier. In that statement she gives an explanation for her inability to remain present at the appeal hearing. 8. We will now deal with L's appeal Review Applicant's Appeal The Principal Decision 1. Between 2013 and 2105 the agency conducted an internal investigation into alleged misconduct by L as an employee of the agency. Prior to the completion of that investigation L had lodged a complaint of unlawful discrimination with the Australian Human Rights Commission (AHRC). The AHRC deferred investigation of her complaint until completion of the agency investigation. On 10 March 2015 the agency's legal officer advised the AHRC by email of the completion of the investigation and attached a full copy of the report of the investigation. 2. The key issue in the case before the Tribunal was whether or not the disclosures in relation to L that were affected by the email and the attachment contravened the duties to which the agency was subject under the PPIP Act in respect of the protection of personal information. 3. The agency's primary contention was that its conduct was immune from suit in this Tribunal by virtue of s 48(3) of the Australian Human Rights Commission Act 1986 (AHRC Act), in particular s 48(3). Section 48 provides: Protection from civil actions (1) Subsection (2) applies in relation to any of the following persons: (a) the Commission; (b) a member of the Commission; (c) a person acting for or on behalf of: (i) the Commission; or (ii) a member of the Commission. (2) The person is not liable to an action or other proceeding for damages for or in relation to an act done, or omitted to be done, in good faith in performance, or purported performance, of any function, or in exercise or purported exercise of any power, conferred on the Commission or the member. (3) Where: (a) a complaint has been made to the Commission; or (b) a submission has been made, a document or information has been furnished, or evidence has been given, to the Commission or to a person acting on behalf of the Commission; a person is not liable to an action, suit or proceeding in respect of loss, damage or injury of any kind suffered by another person by reason only that the complaint or submission was made, the document or information was furnished or the evidence was given. 1. The Tribunal upheld the agency's submission. 2. First of all it examined the scope of the review application, as that was a matter in issue. It decided that, L's application for review was confined to the agency disclosures to which we have referred of 10 March 2015. 3. It rejected L's submissions that the application had a wider compass, and took in a range of other ways in which it had managed her personal information. The Tribunal had regard in reaching its conclusion to the scope of L's internal review application to the agency. 4. PPIPA requires applicants first to apply to the agency for internal review, before they can seek external review by the Tribunal. The Tribunal applied established principles that an external review application cannot exceed the scope of the internal review application unless the parties otherwise agree. 5. The Tribunal then considered the s 48(3) issue and held that it conferred immunity on the disclosures of 10 March 2015. In that regard, it rejected L's submissions that the disclosure exceeded the scope of the immunity. In any event, the Tribunal went on to consider whether the disclosures of 10 March contravened the PPIP Act. It held they did not. In reaching that conclusion it primarily relied upon the exception given from the Act's general prohibition of the disclosure of personal information found in ss 18 and 19 by s 25(b), i.e. 25 Exemptions where non-compliance is lawfully authorised or required A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if: … (b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998). Grounds of Appeal 1. An appeal may be made on 'any question of law or, with the leave of the Appeal Panel, on any other grounds': Civil and Administrative Tribunal Act 2013 (NCAT Act), s 80(2)(b). The questions raised by L's appeal grounds are all questions of law. 2. Ground 1 relates to the Tribunal's construction of s 48(3) of the AHRC Act and its application to the circumstances. Ground 2 puts in issue the Tribunal's construction of the scope of her application for review. She argued that she had sought to put in issue a wider range of matters than simply the agency communications of 10 March. Ground 3 challenged the adequacy of the Tribunal's reasons. Ground 4 challenged the proceedings of the Tribunal on the ground of procedural fairness. Consideration Ground 1: 1. In our view, the Tribunal's interpretation of s 48(3) was correct. The same issue was considered closely by the Appeal Panel in MT v Director-General, Department of Education and Training [2005] NSWADTAP 77 at [86]-[92]. The decision was set aside on other grounds by the Court of Appeal in Director General, Department of Education and Training v MT [2006] NSWCA 270. 2. In MT the review applicant put in issue an agency's compliance with state privacy laws (PPIPA and also the Health Records Information Privacy Act 2002 (HRIPA) in connection the way a teacher at the school she attended had obtained information about her from school records and used it in a private capacity. She named the Department of Education and Training as the respondent to the review application, as it was the employer of the teacher. The information related to a disability she possessed. She also made a complaint of disability discrimination to the Australian Human Rights Commission, naming the Department as one of the respondents to the complaint. 3. Her complaint under the PPIPA Act included a challenge to the disclosures made about her case by the agency to the AHRC in response to enquiries from the AHRC. The Tribunal at first instance did not accept the agency's submission that the disclosure was immune from suit under s 48(3). The Appeal Panel upheld the agency's appeal on this point. That ruling was not considered by the Court of Appeal. It decided the case on the basis that the conduct of the teacher was not, in the circumstances, attributable to the school and therefore could not be treated as conduct of an agency falling within the scope of PPIPA. 4. We will not reiterate in this decision the reasons given by the Appeal Panel in MT on the immunity issue. They are extracted in the case of AIL v Department of Premier and Cabinet [2013] NSWADTAP 26 at [33]. 5. In our view, the Tribunal's conclusion was correct. A delegate of the President of the AHRC, following the receipt of L's complaint, had made a request for information to the agency. It is immaterial that the communication took the form of a request rather than by the giving of a formal statutory notice requiring the provision of information. The complaint was lodged under s 46P of the Act. It must be referred to the President: s 46PD. The President was required to inquire into the complaint and seek to conciliate it: s 46PF. 6. We agree with the Tribunal below, and the reasons it gave, that the President's statutory duty to conduct an inquiry into a complaint and seek to conciliate (s 49PF) permits requests for information to be initiated without the need for the formal exercise of the statutory powers given by s 46 PI to compel the provision of information that do not involve the formal exercise of statutory powers to demand information. It is conventional for organisations whose mandate is the conciliation of complaints to proceed first to acquire information relevant to a complaint by request, and to keep its powers to demand information and compel assistance in reserve. 7. The immunity is widely expressed, and clearly covered the communication made by the legal officer on 10 March 2015, as was carefully explained by the Tribunal below. The Member referred in more detail than we have to the relevant law and principles, and we adopt his reasons. 8. The Member dealt there, soundly in our view, with objections raised again by L in this appeal. For example, we agree with the Tribunal below that the immunity extends to the furnishing of information even if it was false or malicious (as asserted by L). We should note that L's allegation of bad faith on its part is not conceded by the agency and that there is no evidence to suggest that it has any basis. 9. While, in light of its primary finding it was not required to do so; the Tribunal also examined the agency's alternative argument that the disclosure was lawful under the PPIP Act. It accepted that the information contained in the email and the attachment had been disclosed for a purpose other than the purpose for which the information was collected, and therefore for the disclosure to be lawful for the purposes of the PPIP Act it needed to fall into one of the exceptions to the prohibition on disclosure of information for another purpose (see s 18), or have the benefit of an exclusion or exemption. We have set out s 25(b) earlier in these reasons. 10. It submitted that the disclosure was one that was 'reasonably contemplated' by another law, namely the AHRC Act. It relied on a line of Appeal Panel authority explaining how this provision is to be construed and applied, most recently AIL to which we have referred above and BFP v NSW Ambulance Service [2015] NSWCATAD 39 at [41]-[45]. Again, we endorse the Tribunal's reasons in relation to this aspect of the case. Ground 2 1. This related to the way in which the Tribunal characterised the scope of her internal review application to the agency. 2. For reasons, again explained in the Tribunal's case-law, the scope of the application for internal review sets the scope of the proceedings before the Tribunal. Whether an application for internal review has been made is to be determined objectively: see, e.g., PC v University of New South Wales (GD) [2005] NSWADTAP 72 at [28]. Similarly, the scope of the application is a matter of fact to be determined objectively by construing the application reasonably: KO v Commissioner of Police, NSW Police Force (GD) [2005] NSWADTAP 56 at [13]-[17]. The focus is the conduct of which the applicant complains. 'Conduct' is the expression used in this area of the law to describe action by the agency or circumstances involving the agency that might amount to a possible contravention of an information protection principle: see PPIPA s 52. There needs to be material that can be understood by the agency, fairly read, as connecting the action or circumstances of concern to a principle, whether or not the principle itself is actually specified by the application. 3. The Tribunal decided the internal review application, fairly read, was confined to the agency's conduct in connection with the email communication of 10 March, and specifically that it put in issue the lawfulness of the disclosure to the AHRC. It therefore agreed with the agency's characterisation of the application. Such a finding is one of fact, and is not ordinarily amenable to appeal on error of law grounds. In our view, the Tribunal engaged with the question and carefully examined the application for internal review. We are satisfied that it did not misconstrue the application, and it was open to it conclude as it did that the application did not cover the matters set out in para [48]. Ground 3 1. Is that the Tribunal failed to give adequate reasons for the overall decision 'taking into account the whole of the appellant's internal review request'. We have found that the Tribunal did not err in law in its characterisation of the scope of the internal review application. It did not therefore fail in the way suggested. 2. In Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 Allsop P stated at [2] that when dealing with large bodies of evidence, a trial judge may be: forced to economise in expression and approach in order to be coherent in resolving the overall controversy. The need for coherent and tolerably workable reasons sometimes requires truncation of reference and expression ... That said, central controversies put up for resolution by the parties must be dealt with. The competing evidence directed or relevant to such controversies must be analysed and resolved. 1. The Tribunal's reasons were comprehensive in relation to the central issue, the Tribunal having defined it in a narrower way than the appellant would have preferred. It did not transgress the standards of adequacy propounded in leading cases such as Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281 per McHugh JA; Absolon v NSW TAFE [1999] NSWCA 311. For a recent comprehensive appellate court review of the relevant authorities, see Keith v Gal [2013] NSWCA 339 esp per Gleeson JA. They did not contravene the statutory standard contained in the NCAT Act, s 63(3). As to the application of these principles in a statutory context, see the discussion in Assadourian v Roads and Maritime Services (GD) [2013] NSWADTAP 46 at [41] to [45] and ALZ v Lismore City Council [2016] NSWCATAP 190. 2. As stated by Basten JA (Beazley JA and Macfarlan JA agreeing) in Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48]: It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. Rather it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power. Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality. 1. No higher standard would, we think, be expected of a Tribunal member. 2. Ground 3 is rejected. Ground 4 1. This ground challenges the procedural fairness of the Tribunal's proceedings. In her submissions she begins by noting that she was self-represented. She said that no procedural fairness was accorded to her in the 'lead up' to the Tribunal's hearing of 30 May 2016 'with regards to oral statements and the opportunity to interview the respondent's staff, namely [name, legal officer] and other [agency] staff'. She also criticises certain aspects of the conduct of the second day of hearing on 24 June 2016. 2. There is a detailed response to the criticisms which follow in the agency's submissions in reply, at [87] to [124]. 3. Because the internal review application put in issue conduct by the head of the legal section of the agency, the area of the agency that would normally manage the preparation of the agency internal review report, the agency thought it desirable to refer the application directly to the Privacy Commissioner. The Commissioner agreed to accept the referral on 22 February 2016. 4. By that date, as explained in the agency's submissions, L had filed her application for review in the Tribunal with the first planning meeting set down for 8 March 2016. The parties and the Privacy Commissioner were either present or represented at the Tribunal conference. The Tribunal gave directions for the matter to proceed in the Tribunal. L challenges that decision as a denial of procedural fairness, and claims the application ought to have been dealt with first by the agency. 5. As the Tribunal was now seized of the dispute, as a result of L choosing to file the proceedings in the Tribunal, it was at large in the exercise of the procedural powers it has under the NCAT Act. The agency states L was agreeable to that course. L differs. We do not have to resolve that issue. The Tribunal is not ordinarily bound by the consent of a party or both parties in its choices as to the exercise of its procedural powers though, wherever possible, courses of action are pursued with the co-operation and assent of the parties. 6. We understand from reviewing the file, the contents of the reasons for decision, and the submissions that the Tribunal proceeded to deal with the matter on the basis of the documentation of the agency relating to the conduct that fell within the scope of the application. We cannot see anything irregular in this approach or unfair. 7. This was a case, as defined by the Tribunal, which was narrow in scope; involved conduct that could be ascertained adequately from the documentary record and raised a question of law which if resolved in the way submitted by the agency concluded the case. 8. L essentially complains of being deprived of an opportunity to question officers involved in the chain of events. In our view, there was no need for any inquiry of that kind in this case, once the parameters were set in the way they were by the Tribunal. We have already ruled that no error of law has been identified in its finding of fact as to the scope of the application. 9. The case proceeded to hearing on 30 May 2016, and resumed for a second day on 24 June 2016. 10. Great care is taken in the case management of PIPPA and HRIPA proceedings not to have them become a forum for general review of agency policies and actions with which the review applicant disagrees. It is important that the scope of the internal review application and the consequent external review application founding the Tribunal's jurisdiction remain the framework of the review application. It is important that the breaches of which the review applicant complains be related to the relevant information protection principles, and the procedural conduct of the agency be examined in that way. Otherwise there is a great risk that proceedings will expand into matters outside of jurisdiction and become unwieldy. 11. Care is taken in relation to permitting the issuance of summonses by review applicants addressed to agency officers or Ministers to compel attendance to give evidence. It is for the agency to decide how it will conduct its case before the Tribunal. See generally, Lonsdale v University of Sydney [2015] NSWCATAP 277. 12. In our view L is mistaken in her submissions as to the rights she considered she had, and was denied by the Tribunal in its case management processes, in being refused the opportunity to have agency officers summonses issued for their attendance. 13. This class of case should not descend to an adversarial contest reminiscent of criminal or civil litigation in the ordinary courts. It is an administrative review proceeding where the Tribunal is called on to examine agency conduct which almost always is the subject of clear administrative records. 14. The Privacy laws have as their focus the (paper or electronic) documentary environment of an agency. They are data protection laws. It is usually practical to obtain the factual evidence from the documentary trail. It may be necessary to hear agency officers on matters to do with the exercise of a discretion, for example why it was seen as consistent with an exception to the disclosure prohibition to use or disclose, say, a sensitive health record for a reason other than the reason for which it was collected or is being held. But often that part of the case can proceed on the basis of affidavit evidence. 15. At hearing on 24 June 2016 L sought to rely on further evidence. The Tribunal refused to receive the evidence and the issue is dealt with in its reasons for decision. Procedural fairness is concerned with procedural fairness in the broad sense of what is fair as between the parties, and what is fair to each of the parties informed by a range of considerations that include the nature and scope of the proceedings and the stage of the proceedings a concern arises. The Tribunal's reasons for rejecting the evidence are found at [112]. We will not set them out. They are usual reasons for not receiving evidence at a late stage in proceedings. No denial of procedural fairness is demonstrated. 16. Finally we note, as submitted by the agency, that, though directed to do so, L did not submit transcript records or sound recordings in support of her appeal to assist in reviewing the procedural steps of the Tribunal that were able to be examined in that way. The agency did provide excerpts from the Tribunal hearing that it saw as relevant to this part of the appeal. We have reviewed those excerpts and the procedural decisions taken by the Tribunal appear to us to accord with the general approach to cases of this kind that we have explained. 17. The Ground is rejected. 18. This appeal is dismissed. The Agency's Appeal 1. Given the nature of the subject matter (the adequacy of the protection of the privacy of a review applicant), in PPIPA cases the Tribunal routinely anonymises the review applicant's name: see generally Procedural Direction 9. On the other hand the agency is normally identified, as are any officers of the agency whose conduct is under notice in the proceedings or who are otherwise involved in the proceedings, for example officer who give evidence in relation to the way the agency acted. Identification of the agency in this was preserves and promotes the public accountability of agencies. Reasons for decision are routinely published on sites such as Caselaw NSW, and Austlii and Jadenet, and sometimes in specialist services. 2. The agency's appeal challenges the Non-Publication Order. To reiterate, it reads: The reasons for decision dismissing the applicant's substantive application in this matter, in the form issued to limited persons on 26 August 2016, are not to be released for publication; and the disclosure of the reasons in that form is to be restricted to these persons: the Applicant, the legal representatives of the Respondent at the hearing and to [name of legal officer] and may also be released to the [a governing body] of the respondent, to a [committee of the governing body], and to the Senior Executive of the respondent to whom [the named legal officer] reports. 1. The agency proposes the following additions to the order: 1. That the names of the parties may be disclosed for the purposes of legal advice and/or legal representation. 2. In the alternative to Order 1, that the names of the parties may be disclosed by either party to any legal representative retained by, or providing advice, to that party. 3. Further, that the reasons for decision [i.e. the Principal Decision, as varied by the First Publication Decision], may be disclosed for the purposes of legal advice and/or legal representation. 4. In the alternative to Order 3, that the reasons for decision [i.e. the Principal Decision, as varied by the First Publication Decision] may be disclosed by either party to any legal representative retained by, or providing advice to, that party. 1. It will be seen that the difference between 1 and the alternative in 2, and similarly as between 3 and the alternative in 4, is the reference to the legal representative being 'retained' by the party. 2. As the agency's appeal was reached after L had left the hearing room, we suggested to counsel that we should not hear any detailed oral submissions but proceed to determine the matter on the basis of the written submissions, and treat L's position, as had been foreshadowed to her, as one that supported the orders as made, and relied on the reasons given by the Tribunal. 3. There was a short oral interchange on the following matter. (There was also a short oral submission going to the issue of costs, dealt with later in these reasons). 4. As noted in relation to L's appeal, an appeal may be made on 'any question of law or, with the leave of the Appeal Panel, on any other grounds': NCAT Act, s 80(2)(b). 5. The agency's appeal was a question of law only appeal. The grounds in the notice of appeal asserted that the Tribunal had erred in law, and sought the variation to the orders set out above. In our opinion, the grounds did not clearly identify the nature of the error. 6. Counsel advised that the error was put as a wrongful exercise of an administrative discretion that infringed principles laid down in House v R [1936] HCA 40; 55 CLR 499. Counsel noted that this had been clarified in the agency's written submissions filed 17 March 2017. We agree. Consideration 1. The agency stated in its submissions that it wished to be able to provide the unexpurgated reasons for all three of the decisions to date in this matter to its lawyers, as required, for legal advice or legal representation, and to be able to refer to the name of the review applicant, regardless of whether the lawyers are those who have handled the matter to date. 2. As the agency's submissions noted, the ordinary and orthodox rule in the Tribunal is that it sits in the open, the proceedings are public, and its reasons for decision are given publicly, sometimes orally, more commonly in writing. That this is the governing rule is recognised by the NCAT Act, in particular s 49. Section 49(1) provides: 49 Hearings to be open to public (1) A hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise. (2) The Tribunal may (of its own motion or on the application of a party) order that a hearing be conducted wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason. 1. The rule may be moderated as appropriate. Section 49(2) deals with one example. 2. We accept that s 49(1) reflects the principle of 'open justice' (see Russell v Russell (1976) 134 CLR 495 at 520 per Gibbs CJ) that applies to all judicial and quasi-judicial proceedings in this country. But, as privacy proceedings highlight, open justice is a value that must sometimes be balanced against other values. Similarly it is well accepted that there are other public interests that may militate against identification of parties or witnesses or third persons mentioned in proceedings; for example, the names of child victims of sexual assault, sometimes adult victims and people with psychiatric or other conditions whose health or rehabilitation may be set back by public identification should be accorded anonymity in proceedings; or because of the need to protect commercial confidentiality, law enforcement or national security interests. 3. The Tribunal's power to limit the publication or disclosure is given to the Tribunal by s 64 of the NCAT Act. Section 64 provides: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) The Tribunal cannot make an order under this section that is inconsistent with section 65. [This provision prohibits any publication of the name or other identifying particulars in proceedings in the Guardianship Division and under community welfare legislation, and any other prescribed proceedings or classes of proceedings.] (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. 1. In the scheme of the NCAT Act s 49 and s 64 sit apart from each other. This Tribunal's administrative review jurisdiction is the successor to the jurisdiction previously exercised by the Administrative Decisions Tribunal. In the Administrative Decisions Tribunal Act 1977 (ADT Act) (now repealed) the two provisions were found in the same provision, section 64(1) (the public hearings provision) was followed by s 64(2) (the suppression order provision). That configuration plainly demonstrated that the two provisions were to be read together with primacy accorded to s 64(1). The NCAT Act should, we consider, be read in the same way. 2. In this appeal the agency repeated submissions made to the Tribunal in the hearing giving rise to the First Non-Publication Decision (23 November 2016) as to the strictness of the open justice requirement and the narrow circumstances in which a suppression order should be made. The submissions emphasised the common law principles, as applied in the courts. The Tribunal rejected the submissions, insofar as they suggested that the balance should be struck by application of the 'common law' test. 3. As to whether the common law test was applicable, the Tribunal referred to the detailed examination of the interaction between the ADT Act's ss 75(1) and 75(2), now replicated as s 49(1) and s 64(1) of the NCAT Act undertaken in the ADT Appeal Panel decision, State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69. 4. The ADT Appeal Panel said: 50 Within the opening words of section 75(2) of the ADT Act (and indeed of section 35(2) of the AAT [Administrative Appeals Tribunal] Act), three elements of prime importance are the word 'desirable', the phrase 'for any other reason' and the word 'may'. These indicate that the purpose (or purposes) to be served by a suppression order may be 'any ... reason' (or reasons) whatever, that the power arises when the Tribunal is satisfied that the order is 'desirable' and that the actual making of the order is not mandatory but within the Tribunal's discretion. 51 There are evident and important differences between a power conferred in these terms and the common law power to prohibit or restrict the reporting of matters occurring in open court described by McHugh JA in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 4. As set out above at [44], his Honour stated that by virtue of the principle of open justice, an order prohibiting fair and accurate reports of what occurs in the courtroom is only valid if it is 'really necessary to secure the proper administration of justice in proceedings before it'. In this statement of principle, both the purposes to be served by a suppression order and the criterion for determining whether one may be made are formulated in distinctly narrower terms than in section 75(2) of the ADT Act. 52 In a number of leading authorities dealing with suppression orders at common law, the order sought was (as in the present case) an order preventing the public identification of a person – most commonly a witness – involved in proceedings being heard in open court. Frequently (though not in the present case) the order was sought at or near the commencement of the hearing and, if the application was granted, the order made was that throughout the proceedings the person concerned should be identified by a pseudonym. 53 In such cases, the courts have applied a criterion of 'necessity', such as that stated by McHugh JA. They have, however, widened the permitted range of purposes so as to include securing the proper administration of justice generally – i.e., in future proceedings as well as in the proceedings currently being heard. 1. We accept, for the reasons given above, that the Tribunal's power to make suppression orders is less constrained than the position at common law. 2. The Tribunal rejected a submission by the agency that it would be an 'extraordinary step' to make an order for non-publication of the reasons ([15]). The Tribunal continued: 'This case must be assessed according to the criteria in s 64(1).' 3. The agency criticised this statement on the ground that it failed to have regard to s 49(1). 4. In our view, read in context and reading the reasons as a whole, it is plain that the Tribunal was conscious of the general principle for which s 49(1) stands. It had said as much at [12]: That is not to say the common law principle of open justice is irrelevant – on the contrary it significantly informs a correct application of the relevant provision to the point where there is a presumption in favour of proceedings being freely reportable ... However, an applicant for an order under this provision faces a less demanding test for a suppression order than that required at common law. 1. At [16] the Tribunal continued: 16 As will be common in privacy cases, the sensitivity I am concerned with is a disclosure of the applicant's association with information. Am not concerned with information which by itself, unassociated with the individual, is confidential or sensitive such as may be the case with a trade or defence secret. Accordingly, in this case s 61(1)(a) and (b) interrelate. 1. At [17] the Member referred to parts of the Tribunal's Procedural Direction regarding its anonymisation practices. 2. The Tribunal at [18]-[19] gave its reasons for restricting the circulation of the unexpurgated version of the Principal Decision to the persons or bodies named in the Order it made. The Tribunal gave as an example of the need for strict limitation of the circulation of the Principal Decision a reference that appeared in it to a significant letter from the applicant to a head of the agency of a confidential character containing sensitive information about the applicant. He said that; [T]here is cause for concern that persons within [the agency], who fall outside those who are legitimately aware of any such confidential information, upon reading the reasons, may link the applicant with such confidential information.' 1. The Member then gave reasons at [19] as to why he thought it proper to limit to dissemination of the unexpurgated reasons to the legal representatives (which we understand to be a reference to the legal representatives directly involved in the proceedings) and the agency legal officer; and to certain bodies within the agency; and the senior executive officer. He concluded: It seems to me that such persons would be legitimately entitled to be aware of the information in issue despite the privacy associated with the information and despite any confidentiality that might apply to it. 1. The Second Non-Publication Decision must be read against the background of the Principal Decision and the First Non-Publication Decision. 2. At para [10] of the Second Non-Publication Decision, the Member stated that he regarded L's concerns as 'reasonably based' and considered that it was appropriate to deal with the internal circulation of the reasons within the agency in a way that would avoid disclosure of the confidential information 'to some people within the [agency], who it would appeared would not be entitled to know the information'. 3. At a number of points in its reasons, both in the First Non-Publication Decision and the Second Non-Publication Decision, the Tribunal referred to the ability that readers knowledgeable of the agency might have to deduce the identity of the applicant from the contextual information found in the decision about issues, procedures and the like, and references to the anonymised applicant's grievance and personal characteristics. This is sometimes called the 'mosaic effect'. 4. The agency submitted that this is not enough to justify a de facto prohibition on disclosure to legal representatives and/or legal advisers. 5. The agency submitted that for such a severe order to be warranted, the Tribunal should have addressed the prejudice that may be caused to either or both parties by not being able to show the unexpurgated reasons to legal advisers in the future, where appropriate and relevant. The agency submitted that the Tribunal had failed to address this issue. 6. The agency submitted that it would be: 1. entirely unable to seek any legal advice, or obtain any legal representation or any other support, in relation to any decision made in the proceedings below and potentially, in relation to other matters concerning the issues raised in the proceedings below, if its present legal representatives become unavailable. The submissions continued that these concerns have particular relevance in circumstances where L has made other PPIPA applications in relation to agency conduct affecting her, and many of those applications were presently before the Tribunal. The submissions went on to refer to the right of people to obtain legal advice and representation, and the role that right plays in the fair and effective administration of justice. Consideration 1. In our view the Tribunal's reasons for decision did explain by reference to relevant considerations why a high degree of control ought to be placed on the circulation within the agency of the non-anonymised, unexpurgated sets of reasons for decision. The agency acknowledged that in its submissions. The Tribunal sought to confine circulation of the unexpurgated reasons to, what might be described as, the highest echelons of the administration of the agency and limit any circulation subordinate to that tier to the agency legal officer, and the legal representatives in the present case. 2. It is plain that the Tribunal was conscious in both its First Non-Publication Decision (see [19]) and its Second Non-Publication Decision (at [4]) that its references to legal representatives were limited to representatives in the present proceedings. In parts of its later discussion it is not always clear whether that was intended to mean the present legal representatives in the present proceedings. However the Order made 23 November 2016 confines the meaning of the legal representatives in that way. 3. In our opinion, the reasons did not grapple with the very practical questions raised by the agency in these submissions. 4. It is, we think, a very grave step to confine the circulation of information that is relevant to a proper request for professional advice and assistance in a way that may impair the professional adviser's ability to obtain a full understanding its detail and context. For advice to be frank and fearless it needs to be fully informed. Complete advice requires complete information. In this case we also regard as relevant to the need for a less strict order the fact that the parties are engaged in litigation on multiple fronts. 5. Professional advisers are accustomed to dealing in a confidential way with confidential information, including information of great personal sensitivity to those upon whom it bears. They are bound by ethical and legal duties of confidentiality, and those duties flow to the contents of the information with which they have been briefed. 6. There is, perhaps, a greater difficulty in ensuring strict control of L's personal information and connection with these proceedings in a large agency that may have relatively porous boundaries as between the professional advisory sections and the general administration. The Tribunal did indicate that it considered a strict limit needed to be placed on internal dissemination of the unexpurgated reasons. But it did not address the position of house lawyers in that regard, other than to make an exception for the senior legal officer involved in the matter and the Senior Executive to whom that senior officer reported. 7. In our opinion, the reasons should have explained the sweep of the prohibition, in particular its impact the agency's ability to obtain legal advice and legal representation in future in matters to which these proceedings might be reasonably relevant. If concerns about leakage or misuse of the information drove the prohibition, there should, we think be less concern over information that goes to lawyers who do not work within the agency, such as solicitors in private practice or barristers. This distinction is not addressed. 8. In our view, the Tribunal's approach to the question of dissemination of non-anonymised, unexpurgated reasons for legal advice and legal representation gave rise to the following errors of law, applying for this purpose the principles of House v R at 505 (per Dixon, Evatt and McTiernan JJ): it 'failed to take into account a material consideration' and, the sweep of the prohibition in relation to the obtaining of legal advice and legal representation was, we consider 'unreasonable'. 9. In our view the Non-Publication Order, as previously made, should be varied. We have not adopted exactly the terms suggested by the agency in its proposed orders. Though we assume the proposed orders were intended only to operate where the provision of the unexpurgated reasons was 'reasonably relevant' to the provision of advice or representation, we have made that clear by including those words. We will revise the order as follows (new elements underlined): The reasons for decision dismissing the applicant's substantive application in this matter, in the form issued to limited persons on 26 August 2016 ('the unexpurgated reasons'), are not to be released for publication; and the disclosure of the reasons in that form is to be restricted to these persons: the Review Applicant, the legal representatives of the Respondent at the hearing and to [name of legal officer]; and may also be released to - the [a governing body] of the respondent, to a [committee of the governing body], and to the Senior Executive of the respondent to whom [the named legal officer] reports; and to legal representatives or legal advisers in circumstances where the unexpurgated reasons for decision in this proceeding are reasonably relevant to the provision to the Respondent of legal advice and representation, whether in connection with this proceeding or in other matters that involve dispute between the Review Applicant and the Respondent. 1. We encourage the Senior Executive to keep a confidential log and record of instances of any such disclosures, for inspection by the Privacy Commissioner if required. Costs 1. The agency reserved its position in relation to costs in respect of L's appeal in relation to the matter canvassed at [115] to [124] of its submissions in reply to her appeal. That matter related to appeal directions given on 13 October 2016 requiring L to furnish the Appeal Panel with sound recordings of the hearings at first instance, accompanied by specific references to the places in the sound recording to be referred to in the appeal as evidencing failures of procedural fairness or other errors of law. When she did not comply with that direction, the agency proceeded to address that need; by including in its appeal bundle selected excerpts of the transcript that it considered were the possible subjects of L's appeal. The agency reserved its right to object if she sought to extend the appeal outside the boundary set by those excerpts. 2. We direct the agency to advise the Registrar within seven days of publication of these reasons whether it wishes to apply for costs in respect of that issue. 3. If so, directions will be made for the exchange of submissions. The Appeal Panel will consider dispensing with an oral hearing, and determining the matter without a hearing, if there is no objection from either party. If there is an objection the Tribunal will consider the objector's submissions and the other party's submissions in reply before making a final determination as to whether to proceed entirely by reference to the written submissions. See further s 50 of the NCAT Act. Orders Order (1) made in the decision under appeal is set aside, as are the related prior orders made 26 August 2016 and 23 November 2016. The following order is made in substation The reasons for decision dismissing the applicant's substantive application in this matter, in the form issued to limited persons on 26 August 2016 ('the unexpurgated reasons'), are not to be released for publication; and the disclosure of the reasons in that form is to be restricted to these f persons: (a) the Review Applicant, (b) the legal representatives of the Respondent at the hearing and to [name of legal officer]; and may also be released to - (c) the [a governing body] of the respondent, to a [committee of the governing body], and to (d) the Senior Executive of the respondent to whom [the named legal officer] reports; and to (e) legal representatives or legal advisers in circumstances where the non-expurgated reasons for decision in this proceeding are reasonably relevant to the provision to the Respondent of legal advice and representation, whether in connection with this proceeding or in other matters that involve dispute between the Review Applicant and the Respondent. ********** 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: 15 May 2017