Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CPJ v The University of Newcastle [2017] NSWCATAD 350 Hearing dates: 15 November 2017 Date of orders: 29 November 2017 Decision date: 29 November 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: Hennessy LCM, Deputy President Decision: 1. The application to set aside the summons is granted. 2. The proceedings are listed for directions on 5 December 2017 at 9.30 am. Catchwords: PROCEDURE – summons to produce documents – where applicant in proceedings under the Privacy Information Protection Act 1998 issued a summons to a third party to produce documents – whether summons has legitimate forensic purpose – taking into account common law principles and the guiding principle, whether summons should be set aside Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 36(1), s 37, s 48 Privacy and Personal Information Protection Act 1998 (NSW), s 18, s 52, s 55, Cases Cited: Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 Casley-Smith v District Council of Stirling (1989) 51 SASR 447 Commissioner for Railways v Small (1938) 38 SR (NSW) 564 EQ and Office of the Australian Information Commissioner (Freedom of information) [2016] AATA 785 FM v Vice Chancellor, Macquarie University [2003] NSWADT 78 Henville v Walker (2001) 206 CLR 459 March v Stramare (E and MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 National Employers' Mutual General Assn Ltd v Waind [1978] 1 NSWLR 372 NW v New South Wales Fire Brigades (No 2) [2006] NSWADT 61 Portal Software v Bodsworth [2005] NSWSC 1115 Sharpe v Grobbel [2017] NSWSC 1065 Texts Cited: Neil Rees, Simon Rice, Dominique Allen, Australian Anti-Discrimination Law, (2nd ed 2014, Federation Press) Bernard Cairns, Australian Civil Procedure, Thomson Reuters (10th ed 2014) at 585 Category: Procedural and other rulings Parties: CPJ (Applicant) The University of Newcastle (Respondent) Representation: Solicitors: Kemp Strang Lawyers (Applicant) Hicksons Lawyers (Respondent) Summons recipient (self-represented) File Number(s): 2016/00378106 Publication restriction: Disclosure of the name of the Applicant is prohibited.Note: 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. REASONS FOR DECISION Overview 1. The University of Newcastle admits that it has contravened the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) by disclosing CPJ's personal information for a purpose other than the purpose for which it was collected. CPJ was enrolled in the University and interviewed a person as part of her studies with the University. The University admits unlawfully disclosing eleven pieces of CPJ's personal information to the interviewee. The interviewee passed on some of CPJ's personal information to at least two other people or institutions. (Confidential Exhibit A5.) There is indirect evidence that the interviewee passed on the same information about CPJ to "a number" of other institutions. (Confidential Exhibits 1 and 2.) 2. At CPJ's request, the Tribunal issued a summons to produce documents to the interviewee. That summons is not the subject of these proceedings. CPJ has now issued a summons to one of the interviewee's relatives. The interviewee's relative objected to producing the documents and has applied to have the summons set aside. CPJ opposed that application. The University did not make any submissions. 3. Because any legitimate forensic purpose the summons may have is, at best, marginal, it would facilitate the just, quick and cheap resolution of the real issues in these proceedings to set aside the summons. Documents required to be produced 1. The summons requested the following documents: All correspondence including but not limited to emails or draft emails for the period from 1 February 2011 to date signed by or in the name of (the interviewee and two other relatives of the interviewee) or you and any person, university, college of learning either inside or outside of Australia or the United Kingdom which mentions, states or refers to [CPJ] and any facts or circumstances of her candidature at University of Newcastle. All email correspondence or other correspondence containing the same or similar content to the email by [the interviewee] sent 7 October 2012 at 14.29 to [name of institution deleted] commencing "Dear admissions officer" which is addressed to another person, entity or party. 1. CPJ submits that the reason for issuing the summons is that she needs to know the extent to which her personal information has been disclosed by the interviewee or someone associated with the interviewee. She submits that the broader the dissemination of the information, the more embarrassed she will be and the more reputational damage she will have suffered. She is eager to correct the record of any institution that holds her personal information and says she cannot do that unless she knows all the people to whom the interviewee, or someone associated with the interviewee, has disclosed the information. Basis for the objection 1. The interviewee's relative was not represented by a lawyer. She did not know what the dispute between CPJ and the University was about but considers it onerous to produce the documents. She wrote to the Tribunal requesting that a submission dated 27 September 2017 and an email dated 6 October 2017 to the Tribunal not be provided to CPJ. I told the parties at the hearing that if the interviewee's relative did not want to rely on those submissions, I would not take them into account. CPJ's lawyer indicated that his client was not prejudiced by the fact that the interviewee's relative relied only on her oral submissions. 2. A summons should not impose on the interviewee's relative the task of forming a judgment as to whether a document relates to issues between the parties to the proceedings: Commissioner for Railways v Small (1938) 38 SR (NSW) 564. Although the interviewee's relative did not expressly raise the issue of apparent relevance to an issue in the proceedings, I put CPJ's agent on notice, by the questions I asked, that the issue of legitimate forensic purpose was relevant when determining whether to exercise the discretion to set aside the summons. Legal principles 1. The Tribunal's guiding principle when exercising any power under the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), is to "facilitate the just, quick and cheap resolution of the 'real issues' in proceedings": s 36(1). CPJ lodged the application under the PPIP Act on 24 May 2016 which is over 18 months ago. The Tribunal has assisted the parties to resolve the issues but the matter has not settled: NCAT Act, s 37. 2. A registrar may, on the application of a party to proceedings or at the direction of the Tribunal, issue a summons: NCAT Act, s 48. NCAT Procedural Direction 2 gives as an example of an objection that can be made to a summons, that the "evidence, documents or other things identified in the summons are not relevant to any issue in dispute in the proceedings". The Tribunal may draw on common law principles when determining whether to set aside a summons. At common law, a summons must only be issued for a legitimate forensic purpose. The onus is on the party attempting to procure the material to demonstrate a legitimate forensic purpose by reference to the issues as disclosed in the pleadings: Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 at [27]. 3. It is an abuse of process to issue a summons in relation to documents which have no "apparent relevance" to the issues in dispute: Portal Software v Bodsworth [2005] NSWSC 1115 Brereton J at [22] and [23]; Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 at [26]. It is also impermissible for a party to use a summons for "fishing". The author Bernard Cairns describes "fishing" as "where a party attempts by way of a subpoena to find out facts, matters and circumstances which might enable the party to advance a case of which there is no present knowledge": Bernard Cairns, Australian Civil Procedure, Thomson Reuters (10th ed 2014) at 585. 4. The question is not whether the documents would be admissible in evidence or will "definitely advance the case of the parties" issuing the summons: Portal Software v Bodsworth [2005] NSWSC 1115 Brereton J at [25]. The test is whether the documents sought under the summons have apparent, as distinct from actual, relevance to the case: National Employers' Mutual General Assn Ltd v Waind [1978] 1 NSWLR 372; Casley-Smith v District Council of Stirling (1989) 51 SASR 447. 5. In a recent Supreme Court case, Brereton J summarised the principle as being "… that there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case. This reflects the notions that the documents relate to, throw light on or are sufficiently relevant to the dispute; that they "appear relevant in the sense they relate to the subject matter of the proceedings"; or that they could possibly throw light on the issues in the case": Sharpe v Grobbel [2017] NSWSC 1065 at [35] (footnotes deleted.) Identification of issues in the proceedings 1. To determine whether the summons should be set aside I need to identify the relevant issues in the proceedings. In the Points of Claim, CPJ noted that the University admitted that it had disclosed her personal information to the interviewee in breach of its obligations under s 18 of the PPIP Act. CPJ also referred in some detail to the "consequential disclosures" of her personal information by the interviewee's lawyers to a tertiary institution. She foreshadowed that she would issue further summons to determine the extent of the "consequential disclosures". CPJ alleged in her Points of Claim that the "consequential disclosures" had caused her "great embarrassment and anxiety" and "had a detrimental effect on her reputation …". CPJ referred to other legal proceedings between CPJ and the interviewee. I understand that these proceedings have now settled. 2. CPJ sought the following relief from the University of Newcastle: Damages By reason of the matters pleaded in paragraphs above the Applicant seeks an order requesting the Respondent to pay the Applicant the maximum damages awardable of 40,000 pursuant s 55(2)(a) of the PPIP Act. Other Actions By reason of the matters pleaded in paragraphs above, the Applicant seeks orders pursuant to s 55(2)(d), (e) and (g) that the Respondent: (a) Apologise in writing to the Applicant for breaching her privacy in the form and on terms proposed by the Applicant and ordered by this Tribunal; and (b) Write to the interviewee [and one of his relatives] in the form and on terms proposed by the Applicant ordered by this Tribunal. 1. Sections 55(4)(a), (d), (e) and (g) of the PPIP Act provide that: (2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders: (a) subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct, … (d) an order requiring personal information that has been disclosed to be corrected by the public sector agency, (e) an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant, … (g) such ancillary orders as the Tribunal thinks appropriate. 1. Section 55(4)(b) provides that the Tribunal may make an order for damages under subsection (2) (a) only if: (b) the Tribunal is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency. 1. Based on the CPJ's Points of Claim, the issues in the substantive proceedings are: 1. whether to make an order under s 55(2) of the PPIP Act; and, if so, 2. whether any financial loss or psychological harm CPJ has suffered, was because of the conduct of the University; 3. whether to order the University to apologise to CPJ; and 4. whether to order the University to write to the interviewee [and one of his relatives] in certain terms; 5. whether to order the University to pay CPJ's costs. Consideration 1. Apart from the claim for damages, none of the relief sought by CPJ relates to the documents described in the summons. Under s 55(2)(d) and (e), the Tribunal has power to make orders requiring personal information to be corrected by the University and requiring the University to take specified steps to remedy any loss or damage suffered by the Applicant. The Points of Claim do not seek a remedy that the University communicate to any third party other than the interviewee and one of the interviewee's relatives. 2. At the hearing, CPJ's lawyer foreshadowed that CPJ may seek other orders in relation to the correction of the record and steps to remedy any loss or damage suffered by his client. As far as I am aware, CPJ has not put the University on notice of any further remedies being sought, nor has the Points of Claim been amended. In those circumstances, I have not taken into account any foreshadowed expansion of the remedies sought when determining whether to set aside the summons. 3. In relation to the claim for damages, the Tribunal has a discretion to order damages if it is satisfied that CPJ "has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency": PPIP Act, s 55(4). CPJ has provided evidence to support her claim under s 55(2)(a). (Confidential Exhibit A4.) 4. The words "because of" in s 55(4)(b) of the PPIP Act require a connection between the loss or harm claimed and the agency's contravention or disclosure as defined in s 52(1) of the PPIP Act. The meaning of those words has not been the subject of extensive analysis by the Tribunal. In FM v Vice Chancellor, Macquarie University [2003] NSWADT 78 at [103], one of the Tribunal's predecessors, the Administrative Decisions Tribunal (ADT), held that the 'but for' test of causation applies: The requirement that any loss or damage be "because of" the conduct reflects the common law requirement that the damage must be caused by the conduct in question. The "but for" test is generally applied to torts and is relevant to these proceedings. Pursuant to the "but for" test, the conduct caused the damage if that damage would not have occurred without (but for) it. (March v Stramare [1991] HCA 12; (1991) 171 CLR 506). In other words, did the conduct in question make any difference to the outcome? 1. I was the ADT member who delivered that decision. Since that time the ADT, differently constituted, has warned that care should be taken in drawing strict analogies with the common law principles as they have developed in the law of torts and the law of contract: NW v New South Wales Fire Brigades (No 2) [2006] NSWADT 61 at [22] per O'Connor DCJ. 2. More attention has been given to the issue of causation by the Administrative Appeals Tribunal (AAT). Under s 52 of the Privacy Act 1988 (Cth), after investigating a complaint, the Australian Privacy Commissioner may find the complaint substantiated and make a determination including a declaration that the complainant is entitled to a specified amount by way of compensation for any loss or damage suffered by reason of the act or practice which is the subject of the complaint. 3. When interpreting the words "by reason of" in EQ and Office of the Australian Information Commissioner (Freedom of information) [2016] AATA 785 at [47] the AAT adopted the following principles relying, to some extent, on the common law principles in March v Stramare (E and MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506: (a) causation is ultimately a question of common sense and experience, determined on the facts of each case; (b) in law, causation is a question identifying where legal responsibility should lie, rather than examine the cause of event from a scientific or philosophical viewpoint, policy issues and value judgements have a role to play in determining whether, for legal purposes, a circumstances we found to be causative of loss; (c) a 'but for' analysis is not a sufficient test for causation, although it may be a guide; and (d) where there are multiple elements, each one sufficient on its own to have caused the loss, the causation test may be considered satisfied by each one of them. 1. The words "by reason of" in the Commonwealth privacy legislation convey the same meaning as the words "because of" in the NSW statute. Despite my conclusion in FM v Vice Chancellor, Macquarie University [2003] NSWADT 78 at [103], I agree with the AAT summary of the relevant principles and acknowledge that a 'but for' analysis is not a sufficient test for causation. 2. In any event, as Mason CJ said in March v Stramare (E and MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 517, "… the 'but for' test does not provide a satisfactory answer in those cases in which a superseding cause, described as a novus actus interveniens, is said to break the chain of causation which would otherwise have resulted from an earlier wrongful act". In the context of proceedings for breach of the Trade Practices Act 1974 (Cth), the High Court has held that the relevant question is whether the breach "materially contributed to the loss or damage, despite other factors or conditions having played an even more significant role …": Henville v Walker (2001) 206 CLR 459 at 493. 3. Authors Rees, Rice and Allen have suggested that the "material contribution" test is a "useful and workable" test in the context of anti-discrimination legislation "where the respondent argues that he or she should not be held responsible for the loss or damage because it was caused by the conduct of some other person": Neil Rees, Simon Rice, Dominique Allen, Australian Anti-Discrimination Law, (2nd ed 2014, Federation Press) at 823. 4. The degree to which a person is required to "mitigate" or minimise any loss or damage in the context of the PPIP Act arises as an issue in this case. Common law principles developed for the purpose of torts or contracts may be useful as a guide but are not binding on the Tribunal. Nevertheless, based on common sense and experience, an applicant should take reasonable steps to minimise the loss or damage which is attributable to a relevant contravention of the PPIP Act. The onus should be on the agency to prove that an applicant has not taken reasonable steps: Henville v Walker (2001) 206 CLR 459 at 483. 5. The only issue which relates to the documents under summons is the extent of any financial loss or psychological harm to CPJ because of the University's contravention of the PPIP Act. CPJ knows that the interviewee has disclosed her personal information to at least two other people or institutions and has provided medical evidence in support of her claim for damages for those disclosures. CPJ has reason to suspect that the interviewee has disclosed that information to "a number" of other people or institutions. 6. CPJ has filed evidence which she will presumably seek to rely on at the substantive hearing, which supports her claim for damages for the "embarrassment, anxiety and effect on her reputation" of what she refers to as the "consequential disclosures". There is no entitlement to claim any loss for reputational damage unless that loss is financial. 7. If the summons is not set aside, and documents are produced, CPJ would presumably submit that she has now suffered additional financial loss or psychological harm. She would need to update her medical evidence on that point. It would then be open to the University to submit that by summonsing those documents and obtaining access to them, CPJ has not taken reasonable steps to mitigate or minimise any financial loss psychological harm which is attributable to a contravention of the PPIP Act. 8. In summary, my conclusions are that 1. the Points of Claim do not seek an order that the University communicate with any third party other than the interviewee and people associated with the interviewee; 2. CPJ is not entitled to claim damages for loss of reputation unless the loss is financial; 3. there is doubt as to whether the disclosure by the University has materially contributed to any additional damage; 4. there is doubt as to whether, by seeking further documents, CPJ is taking reasonable steps to mitigate any additional damage; 5. allowing the summons to be issued would further delay these proceedings because CPJ would need to amend the Points of Claim, file further evidence and update the expert evidence as to the basis for any additional loss or damage. 1. The summons has marginal, if any, apparent relevance to the real issues in dispute. For that reason, it would facilitate the just, quick and cheap resolution of the real issues in these proceedings to set aside the summons. Orders 1. The application to set aside the summons is granted. 2. The proceedings are listed for directions on 5 December 2017 at 9.30 am. ********** 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: 29 November 2017