Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CME v University of Technology Sydney [2019] NSWCATAP 3 Hearing dates: 22 November 2018 Date of orders: 02 January 2019 Decision date: 02 January 2019 Jurisdiction: Appeal Panel Before: Hennessy LCM, Deputy President G K Burton SC, Senior Member Decision: The appeal is dismissed. Catchwords: ADMINISTRATIVE REVIEW – appeal from decision dismissing an application under the Privacy and Personal information Protection Act 1998 (NSW) for want of jurisdiction – where Tribunal dismissed application for review of conduct by University of Technology Sydney in publishing a decision of the Victorian Civil and Administrative Tribunal to which she was a party – whether the Tribunal erred in law by dismissing the application STATUTORY INTERPRETATION – meaning of s 6 of the Privacy and Personal Information Protection Act 1998 (NSW) Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 65(1), s 80(2)(b), s 55(1)(b) Privacy and Personal Information Protection Act 1998 (NSW), s6, s 53, s 18, s 25 Victorian Civil and Administrative Tribunal Act 1998 (Vic) Cases Cited: BSU v Workers Compensation Commission [2015] NSWCATAD 125 Budd v Director, Attorney Generals Department [2006] NSWSC 1267 NZ Director General, Attorney General's Department (GD) [2005] NSWADTAP 62 NZ v Attorney General's Department [2005] NSWADT 103 Turnbull v Strange [2018] NSWCA 157 Category: Principal judgment Parties: CME (Appellant) University of Technology Sydney (Respondent) Representation: Solicitors: CME (Self Represented) (Appellant) T Magoulas (University of Technology Sydney) (Respondent) File Number(s): AP18/28651 Publication restriction: The publication of the name of the appellant is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). REASONS FOR DECISION Introduction 1. In 2000, the Australasian Legal Information Institute (AustLII) published a decision given to it by the Victorian Civil and Administrative Tribunal (VCAT). CME was a party to those proceedings. In 2016 VCAT refused CME's application to remove that decision from AustLII but said that the 2000 decision would be republished on AustLII without any reference to CME's address. 2. AustLII was founded in 1995 and is a joint facility of the University of Technology Sydney (UTS) and the University of New South Wales. There is no dispute that UTS was correctly named as a respondent to these proceedings. 3. CME applied to the Tribunal under the Privacy and Personal Information Protection Act 1998 (NSW), s 53 (PPIP Act) for a review of AustLII's conduct in publishing the decision. The conduct about which she complained was: a) Personal information relating to me has been published on the AustLii website. The information in question is in the decision of the Victorian Civil & Administrative Tribunal (VCAT) from 2000 …; (b) Personal information was published without my knowledge or consent; and (c) Personal information published is erroneous. 1. CME alleged that UTS had breached several information protection principles. Her main concern, as demonstrated by the way she characterised the conduct, was the publication or 'disclosure' of her personal information: PPIP Act, s 18. 2. The Tribunal summarily dismissed the application because it found that it did not have jurisdiction. That conclusion was based on s 6(1) of the PPIP Act which provides that Courts, tribunals and Royal Commissions not affected (1) Nothing in this Act affects the manner in which a court or tribunal, or the manner in which the holder of an office relating to a court or tribunal exercises the court's, or the tribunal's, judicial functions. 1. Alternatively, the Tribunal found that, if it did have jurisdiction, the exemption in s 25 of the PPIP Act applied. Section 25 excuses an agency from complying with various information protection principles if: either the agency is lawfully authorised or required not to comply or non-compliance is otherwise permitted under any law. Non-compliance was said to be permitted because VCAT has the power to publish its decisions: Victorian Civil and Administrative Tribunal Act 1998, s 147. 2. CME has appealed to the Appeal Panel from the Tribunal's decision. She has the right to appeal on a question of law but must obtain the Appeal Panel's permission to appeal on any other ground: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2)(b). CME made 27 separate points in her written submissions but agreed that she was relying on two grounds of appeal on questions of law. The first ground was that the Tribunal's interpretation of s 6 of the PPIP Act was mistaken and the second was that the exemption in s 25 of the PPIP Act did not apply. 3. The issues on appeal and our short answers are as follows: 1. Did the Tribunal make a legal mistake by concluding that it did not have jurisdiction? No. 2. If not, did the Tribunal make a legal mistake by concluding that the exemption in s 25 of the PPIP Act applied? No need to address this issue. Did the Tribunal make a legal mistake by concluding that it did not have jurisdiction? Tribunal's decision and parties' submissions 1. The Tribunal found at [76] that it had no jurisdiction to hear CME's review application and that the application should be summarily dismissed: Civil and Administrative Tribunal Act, s 55(1)(b). That conclusion was based on s 6 of the PPIP Act. 2. The Tribunal set out its reasoning at [72]-[76]: [72] I agree with the University that section 6 of the PPIP Act applies to this matter. I considered this provision in my reasons for decision in BCR v Consumer Trader & Tenancy Tribunal [2014] NSWCATAD 79. In that decision I referred to a number of authorities and in particular those discussed by Judicial Member Molony in his decision in LG v Attorney Generals Department of NSW [2009] NSWADT 141. [73] In BCR at paragraph [42] I expressed the view that: [W]hat is relevant is whether there were proceedings before the CTTT that required "hearing" or "determination"; and whether the function that was being exercised is related to those proceedings. [74] I maintain that view. In this matter, there is no doubt that there were proceedings before VCAT that required "hearing" or "determination". The VCAT Decision clearly relates to those proceedings, as does the personal information that is contained in it. In my view, the publication of the VCAT Decision also relates to "the hearing or determination of proceedings" before VCAT. I am satisfied that the disclosure of the personal information contained in the VCAT Decision is related to the judicial function of VCAT. I do not agree with CME's argument that VCAT's judicial function had ceased prior to the publication of the decision. The publication of the VCAT Decision was an integral part of that function. [75] While I accept that neither the University nor AustLii have a judicial function, in my view it is not necessary for either of those bodies to have a judicial function for section 6 of the PPIP Act to apply. [76] As a result of the operation of section 6 of the PPIP Act I think that this Tribunal has no jurisdiction to hear CME's review application. Similarly, this Tribunal has no power to vary the VCAT decision. Accordingly, the application should be dismissed. 1. The foregoing can be seen as applications of the long-standing "open court" principle in the general law which is reflected in PPIP s 6 itself: Hogan v Hinch (2011) 243 CLR 506, [2011] HCA 4 at [22]. 2. CME submitted that the publication of the decision by AustLII was not the exercise by VCAT of a judicial function. VCAT's judicial function finishes when it hands down its reasons for decision. According to CME, publication is an administrative act, not a judicial one. Furthermore, it was AustLII who published the decision, not VCAT. 3. UTS relied on s 147 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) which provides that: Publication of determinations and orders For the guidance of those who may wish to bring proceedings, the Tribunal may publish from time to time reports or bulletins of important or typical determinations and orders made by it. Consideration 1. The "judicial functions" of a court or tribunal referred to in s 6(1) of the PPIP Act are defined as follows in s 6(3): (3) In this section, judicial functions of a court or tribunal means such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it, and includes: (a) in relation to a Magistrate—such of the functions of the Magistrate as relate to the conduct of committal proceedings, and (b) in relation to a coroner—such of the functions of the coroner as relate to the conduct of inquests and inquiries under the Coroners Act 2009. 1. In Turnbull v Strange [2018] NSWCA 157, the Court of Appeal (Basten JA: [13]-[14]; Meagher JA [42]) examined a related issue. The Commissioner for Corrective Services had disclosed personal information by producing documents under subpoena. The Court concluded that the disclosure of the information was not prohibited. That conclusion was supported by the exemption of the judicial functions of courts from the operation of s 6 of the PPIP Act. Basten JA held at [14] that: It may be that the issue of a subpoena is not a core function of the exercise of judicial power, but it is clearly a function of a court of such a kind as to "relate to" the determination of proceedings before it. 1. In Budd v Director, Attorney Generals Department [2006] NSWSC 1267 Bell J was considering a submission by the appellant that the PPIP Act covers the handling of personal information. Her Honour held at [20] that: There is no question of the PPIP Act applying to a court or the holder of an office relating to a court exercising the court's judicial functions. Once the actions of the registry staff were found to relate to the judicial functions of the court within the meaning of the PPIP Act, that was an end to the matter. There could be no question of the Tribunal exercising jurisdiction under that Act. 1. In BSU v Workers Compensation Commission [2015] NSWCATAD 125, an issue before the Tribunal was whether the publication of the decisions of the Workers Compensation Commission forms part of its "judicial functions". The Tribunal concluded that they did because the words "relate to" in s 6(3) are broader than other terms that might have been used in their place, such as "are for the purpose of". In particular, it had been held that the words "relate to" in s 6 "have a broad meaning and denote a wide connection between the conduct of interest and the activity of hearing and determining proceedings": NZ v Attorney General's Department [2005] NSWADT 103 at [16] per O'Connor DCJ. The Tribunal concluded at [32] that publication of decisions is "a standard, normal and expected part of the judicial process, even though it occurs only after the forensic proceedings have ended". 2. We note that s 147 of the VCAT Act gives that Tribunal the power to "publish from time to time reports or bulletins of important or typical determinations and orders made by it". Does the fact that it was AustLII who was the medium for the publication of the decision mean that the publication was not an exercise of VCAT's functions? 3. Professor Mowbray provided evidence to the Tribunal about VCAT's relationship with AustLII in 2000 when the decision involving CME was published. Our understanding is that at that time there was no formal written agreement between AustLII and VCAT. The arrangement was based on discussions and an email. Professor Mowbray went on to state that: VCAT, as with most courts and tribunals in Australia, provides an email feed of decisions to various publishers including AustLii. Back in 2000, decisions were received in batches. AustLii relies on those courts and tribunals to only send decisions that they wish to be published. Where AustLii receives decisions, it is under the expectation that decisions are received for the purpose of publication and permitted to be published. VCAT can change decisions by resending a decision to the automatic email loader at any time, or can request the removal of decisions. AustLii does not select which decisions it publishes. This is the responsibility of the relevant court or tribunal to whom AustLii is publishing decisions on their behalf. Where AustLii receive a request to take down or amend a decision this is referred to the court or tribunal and AustLii acts on their instruction. 1. Nothing in the PPIP Act affects the manner in which VCAT exercises its judicial functions. One of its judicial functions is a discretion to publish its decisions. In this case, VCAT exercised its judicial function in a particular manner, that is, by providing the decision to AustLII for publication on its website. The exercise of a judicial function is not subject to the PPIP Act regardless of the manner in which that function is exercised. 2. Consequently, in our view, s 6 of the PPIP Act applies and the Tribunal was correct to conclude that it had no jurisdiction to entertain CME's application. We leave aside, as not relevant to the present decision, the status of VCAT and AustLII in other legal contexts. 3. It follows that there is no need to address the second issue. However, we do so briefly below. If not, did the Tribunal make a legal mistake by concluding that the exemption in s 25 of the PPIP Act applied? 1. Section 25 provides that: A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if: (a) the agency is lawfully authorised or required not to comply with the principle concerned, or (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). 1. At [79], the Tribunal found that: There is no doubt that publication of VCAT decisions is permitted under section 147 of the VCAT Act. In my view, VCAT is entitled to determine where and when it publishes its decisions. It is entitled to engage AustLii's services to achieve the outcome envisaged by section 147 of the VCAT Act. It is also my view that the publication of VCAT decisions on a website is necessarily implied or reasonably contemplated by section 147 of the VCAT Act. This includes publication of VCAT decisions on AustLii's website. 1. We agree with the Tribunal's conclusion, noting that "law" in s 25 is not limited to NSW law. Nothing CME said persuades us that the Tribunal made a legal error in relation to the application of the exemption. We appreciate that the exemption applies only to the principles set out in ss 9, 10, 13, 14, 15, 17, 18 or 19 and that CME also relied on a breach of s 8, s 11 and s 12(c). However, we have decided that the Tribunal was correct in its decision to dismiss the application because it does not have jurisdiction. In those circumstances we decline to determine the merits of any remaining aspects of CME's application. Order 1. The appeal is dismissed. ********** 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: 02 January 2019