Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DTN v Commissioner of Police (No 3) [2020] NSWCATAP 73 Hearing dates: 3 April 2020 Date of orders: 30 April 2020 Decision date: 30 April 2020 Jurisdiction: Appeal Panel Before: L Pearson, Principal Member Dr R Dubler SC, Senior Member Decision: (1) Vary the decision of the Tribunal of 10 January 2020 to the following: (a) Pursuant to s63(2) of the Administrative Decisions Review Act 1997 (NSW) the Tribunal affirms that part of the respondent's internal review decision of 24 September 2019 to make a formal apology to the applicant because of the conduct that was the subject of the application for internal review of the applicant made on 18 February 2019. (b) Order pursuant to s 55(2)(a) and (4)(b) of the Privacy and Personal Information Protection Act 1998 (NSW) that the respondent pay to the applicant $1,000.00 by way of compensation for the loss or damage he has suffered because of the conduct that was the subject of the application for internal review of the applicant made on 18 February 2019. (2) Remit the question of whether or not the Tribunal should make the other orders sought by the Appellant in his statutory declaration made on 11 October 2019 to the Senior Member for reconsideration in accordance with these reasons and otherwise according to law. (3) Otherwise dismiss the Appeal. Catchwords: ADMINISTRATIVE REVIEW – privacy – health information – damages for contravention of Health Privacy Principle – causation – review of discretionary judgment – parameters of "ancillary orders" under s 55(2)(g) of the Privacy and Personal Information Protection Act 1998 (NSW) APPEAL – practice and procedure – error of law – review of discretionary orders WORDS AND PHRASES — meaning of words "ancillary orders" under s 55(2)(g) of the Privacy and Personal Information Protection Act 1998 (NSW) Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Health Records and Information Privacy Act 2002 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Cases Cited: AHB v NSW Trustee and Guardian [2017] NSWCATAP 79 AOZ v Rail Corporation NSW (No 2) [2015] NSWCATAP 179 APV v Department of Finance and Services [2016] NSWCATAD 168 BVS v Sydney Local Health District [2015] NSWCATAD 171 CJU v SafeWork NSW [2018] NSWCATAD 300 Collins v Urban [2014] NSWCATAP 17 CPJ v The University of Newcastle [2017] NSWCATAD 350 CYH v Family and Community Services [2018] NSWCATAD 84 CYL v YZA [2017] NSWCATAP 105 DQA v Secretary, Department of Family and Community Services [2019] NSWCATAD 156 Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208 GR v Director-General, Department of Housing (GD) [2004] NSWADTAP 26 House v R (1936) 55 CLR 499 Housing NSW v Hamilton [2015] NSWCATAP 136 HP v Hunter New England Health Services [2009] NSWADT 186 JO v Director General, NSW Department of Health (No 2) [2007] NSWADT 256 KO and KP v Commissioner of Police, New South Wales Police (GD) [2005) NSWADTAP 56 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 New South Wales Crime Commission v Ollis [2006] NSWCA 76 NW v New South Wales Fire Brigades (No 2) (2006) NSWADT 61 OD v Department of Education and Training (GD) [2005] NSWADTAP 74 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ros v Commissioner of Police [2020] NSWCATAP 70 Vice-Chancellor Macquarie University v FM (No 2) (GD) [2004] NSWADTAP 37 Texts Cited: None cited Category: Principal judgment Parties: DTN (Appellant) Commissioner of Police (Respondent) Representation: Solicitors: Appellant (Self Represented) Sparke Helmore Lawyers (Respondent) File Number(s): AP 20/04761 Publication restriction: With the exception of officers of the respondent, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. 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. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2020] NSWCATAD 16 Date of Decision: 10 January 2020 Before: G Blake AM SC, Senior Member File Number(s): 2019/00086806 reasons for decision Introduction 1. The appellant (who we shall call "DTN") was a police officer. He was medically discharged from the NSW Police Force (NSW PF) on 9 April 2012. From then he has had disputes with an insurance company in respect of his claim for an on-duty total and permanent disability benefit. 2. The NSW PF in respect of his claim, completed an employer's statement which listed one of his conditions as including a "psychotic illness" (the 2014 Employer Statement). This statement was provided to the insurance company. The appellant denies this, and the accuracy of such a statement. He was shocked and distressed at what he read. 3. The Tribunal decided pursuant to s55(2)(a) and (4)(b) of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) that the appellant is entitled to damages of $1,000 and otherwise took no action in the matter. 4. The appellant by this appeal to the Appeal Panel seeks substantial damages in excess of $1,000, an apology and also ancillary orders in the nature of requiring the respondent to check its records as to whether any other records of it contain the same or similar misstatements and to accordingly correct them. 5. For the following reasons we have decided to allow the appeal in part. Background 1. This is an internal appeal from a decision of the Tribunal on 10 January 2020: DTN v Commissioner of Police, NSW Police Force [2020] NSWCATAD 16 (the Decision). 2. The relevant background of the appellant's complaint can be taken from paragraph [3] to [19] of the Decision as follows (terms as defined below are repeated in this decision): 3. On 16 August 1995, the applicant became a police officer. 4. On 11 May 2011, the applicant made an application to the NSW Police Force (NSWPF) for an amendment to certain records under the Health Records and Information Privacy Act 2002 (NSW) (HRIP Act). His request related to the letter dated 7 September 2010 from Ms Annette Saling (Ms Saling), the Injury Management Advisor of the NSWPF, to his nominated treating doctor (the 7 September 2010 letter) and an email from Ms Saling to Ms Eloise Stedman of Allianz Insurance sent on 30 July 2010 (the 30 July 2010 email). The subject matter of the two documents related to an event that occurred on 21 July 2010. He claimed that the 7 September 2010 letter contained incorrect information. 5. On 9 September 2011, NSWPF advised the applicant by letter that his amendment request had been considered under cl 8 of sch 1 of the HRIP Act and the NSWPF confirmed that amendments would be made. 6. On 23 September 2011, NSWPF by letter to the applicant confirmed the agreed upon amendments. The letter also advised that NSWPF would contact six doctors and individuals about the incorrect information. 7. On 9 April 2012, the applicant was medically discharged from the NSWPF and received an off-duty partial and permanent disability benefit. 8. On 3 June 2013, the applicant filed an application to resolve a dispute in the Workers Compensation Commission in relation his off-duty partial and permanent disability benefit (the workers compensation application). 9. In October 2014, the applicant made a claim for an on-duty total and permanent disability benefit under two separate group policies issued by MetLife Insurance Limited (MetLife) and administered by FSS Trustee Corporation as trustee for First State Superannuation Scheme (FSS) (the TPD claims). 10. On 4 November 2014, the workers compensation application was resolved by the making of consent orders. 11. On 1 December 2014, NSWPF completed, signed and provided directly to MetLife an Employer Statement Total and Permanent Disability Claim form as part of the applicant's claim for an on-duty total and permanent disability benefit (the 2014 Employer Statement) which relevantly listed one of his conditions to include a "psychotic illness". 12. On or shortly before 6 December 2017, MetLife declined the TPD claims. 13. On 7 December 2017, the applicant made a compliant to the Financial Ombudsman Service (FOS) in relation to MetLife's decision to decline the TPD claims. 14. On 21 December 2018, the applicant received an email from the Australian Financial Complaints Authority (AFCA), which is the successor of the FOS, with attached a number of documents including the 2014 Employer Statement. 15. On 23 December 2018, the applicant in his letter to the NSWPF requested that NSWPF provide to him and MetLife an amended Employer Statement, reflecting a factual diagnosis of his condition (the 23 December 2018 letter). 16. On 30 January 2019, NSWPF completed a new Employer Statement Total and Permanent Disability Claim form (the 2019 Employer Statement) with the applicant's condition being noted as "Bilateral plantar fasciitis, chronic pain syndrome, and neuropathic syndrome of the lower legs with a peripheral neuropathy". 17. On 6 February 2019, the applicant in his letter to FSS (the 6 February 2019 letter) relevantly asked the following question: 6) FSS/MetLife were provided information by NSWPF that was false. How does FSS/MetLife respond to the suggestion that its decision to decline my claims was made in reference to false information provided it by NSWPF? Under the circumstances does FSS/MetLife intend to revisit its decision to decline my claims in light of amended medical information now provided it by NSWPF? 18. On 15 February 2019, the applicant made a complaint to the Information and Privacy Commission in relation to documents held by NSWPF that he alleged contained false information. 19. On 21 March 2019, FSS in its letter to the applicant (the 21 March 2019 letter) relevantly provided the following answer to question 6 of the 6 February 2019 letter: As mentioned above, the employer information is one piece of information considered in the assessment. The information provided by the employer as to the condition which caused you.to cease work did not impact the Trustee's decision to decline your claim. It is not medical information. It is an Employer Statement providing 'information relevant to your employment history. … We therefore confirm the amended Employer Statement does not cause MetLife, or the Trustee, to revisit its decision on your claim. The internal review application 1. On 22 February 2019, the respondent received the appellant's internal review application which complains that the respondent provided documents containing false information about the appellant in the document, being the "First State Super MetLife Employers Statement Total and Permanent Disability Claim" form created by the NSW PF on 1 December 2014 (the 2014 Conduct). The appellant stated that he believed it possible that the information provided to FSS/MetLife had been a consideration in FSS/MetLife decision to decline his TPD claims. 2. The internal review application requested that an amended Employers Statement, providing only a factual and verifiable diagnosis of his condition, be provided, and that his NSW PF medical records be re-visited and whatever action necessary be taken to ensure that it cannot occur again. 3. On 12 March 2019 the Office of the General Counsel of the NSW PF, via letter to the appellant, advised him that it was determined that the internal review application was outside of the statutory timeframe specified in s53(3)(d) of the PPIP Act. 4. The appellant then commenced proceedings in the Tribunal against this decision. The Tribunal found that for the purpose of s53(3)(d) of the PPIP Act the appellant became aware of the 2014 Conduct on about 21 December 2018 and therefore remitted the original decision of the respondent back to the respondent for reconsideration in relation to the 2014 Conduct. 5. An officer of the respondent on 24 September 2019 completed a report in relation to the internal review application, being the relevant internal review decision. In section 5 of that decision it was determined that there had been a contravention of the Accuracy HPP. The reasons for this finding was set out in section 6 as follows: Accuracy HPP 6.1 HPP 9 provides that an agency must not use health information without taking steps to ensure the information is accurate, up to date, complete and not misleading. 6.2 I find that the reference to a 'psychotic illness' included in the 2014 claim form was extracted from an internal NSWPF Medical Discharge form at page 1, under the heading 'Nature of Injury' which is a summary of your medical history as contained in various documents and medical reports and opinions held on your NSWPF file. The reference to a 'psychotic illness' is taken from the claim summary form prepared by Dr Wilson dated 29 September 2010. 6.3 I note that there are various other documents, after this date, which refer to your psychological condition and pain associated with your lower leg injury, but there is no other diagnosis of your having a psychotic illness. 6.4 I also note the content of your HRIP amendment confirmation (dated 23 September 2011) and the amendment agreement (dated September 2011), the latter of which specifically confirms the reference to your having a psychotic illness will be corrected on the NSWPF's records. 6.5 In the circumstances and in light of the amendment agreement I consider the reference your having a psychotic illness on the 2014 claim form to be inaccurate and, at a minimum, inconsistent with the position agreed by the amendment agreement. 6.6 I confirm that on 30 January 2019, the 2019 claim form was amended to reflect the correct information at Part 3 of Section 3 on page 3. A copy of this form was provided to you and the insurer. 1. Section 7 of the internal review decision which is headed "Action" provides: 7.1 Based on the above reasons I am of the view that there has been a contravention of HRIP Act [Health Records and Information Privacy Act 2002], specifically the Accuracy HPP. 7.2 I propose to issue an apology for this conduct. I note that the inaccurate information in the 2014 claim form has already been amended by the 2019 claim form. The original hearing before the Tribunal 1. The appellant, dissatisfied with the result of the internal review decision, sought administrative review under the Administrative Decisions Review Act 1997 (NSW) of the conduct of the respondent in 2014 that was the subject of the internal review application. 2. The Tribunal has jurisdiction to undertake such administrative review under s55 of the PPIP Act when read in conjunction with s 21(1) of the Health Records and Information Privacy Act 2002 (NSW) (HRIP Act). 3. The Tribunal in undertaking such an administrative review is exercising jurisdiction pursuant to ss28(2)(b) and 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). 4. As set out in the appellant's statutory declaration before the Tribunal made on 11 October 2019, the appellant sought the following remedies: Reparation > I seek $40,000.00 from NSWPF by way of compensation for loss and damage suffered because of 'the conduct'. > I seek NSWPF take whatever steps necessary to locate any and all documentation in their possession that contain a reference to, or suggestion of my having, or had, a sufferance or suggestion of 'Psychotic Illness' and to permanently remove from that documentation any such reference. > I seek NSWPF take whatever steps necessary to locate on any and all electronic systems accessible to NSWPF any reference to, or suggestion of my having, or had, a sufferance or suggestion of 'Psychotic Illness' and to permanently remove from that electronic system any such reference. (page 5) 1. The Decision of the Tribunal was as follows: 1. Order pursuant to s55(2)(a) and (4)(b) of the Privacy and Personal Information Protection Act 1998 (NSW) that the respondent pay to the applicant $1,000.00 by way of compensation for the loss or damage he has suffered because of the 2014 Conduct that was the subject of the application for internal review of the applicant made on 18 February 2019 under s53 of that Act. 2. Otherwise decide pursuant to s55(2) of the Privacy and Personal Information Protection Act 1998 (NSW) that no action be taken on the matter. 1. The appellant appeals from this Decision. The appeal 1. The appellant lodged his appeal by notice of appeal dated 20 January 2020 which was received by the Tribunal on 20 January 2020. 2. The grounds of appeal were set out in an attachment to this notice of appeal. This took the form of a commentary on various paragraphs of the Reasons for Decision of the Tribunal. The appellant did not otherwise file any written submissions in chief but relied upon what it already filed with his notice of appeal as constituting his written submissions. 3. The respondent filed a reply to the appeal which was received by the Tribunal on 14 February 2020. The respondent's written submissions dealing with the attachment to the notice of the appeal of the appellant was dated 24 March 2020. 4. The appellant filed written submissions in reply dated 25 March 2020. Attached to those submissions was some fresh evidence. The appellant sought to rely upon a letter from MetLife Insurance Limited (MetLife) dated 17 February 2020, attaching certain "file notes" in respect of the appellant's claim. 5. We decided to deal with the admissibility of this fresh evidence when determining the appeal. The nature and scope of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, the "leave") of the Appeal Panel: s80(2) CAT Act. 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. In order to amount to an error of law, it must be demonstrated that there was no evidence to justify the conclusion of the Tribunal or, alternatively, that no reasonable tribunal could have come to the conclusion that it did: see Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13(7) and (8)]. 2. Further, in respect of whether or not the Tribunal failed to take into account a relevant (i.e., mandatory) consideration, the Appeal Panel in Director-General, Department of Finance and Services v Porter [2014] NSWCATAP 6 at [28] stated the following: "Whilst the question of weight is one for the Tribunal, the Tribunal will not have given adequate attention to relevant consideration where its process is merely a formulaic reference: see Azriel v NSW Land & Housing Corporation [2006] NSWCA 372 at [49] per Basten JA (with Santow and Ipp JJA agreeing), instead what is required can be described as a proper, genuine and realistic consideration of the relevant consideration: Bruce v Cole (1998) 45 NSWLR 163 at 185-6 per Spigelman CJ. However, as Basten JA warned in Azriel at [51] referring to Spigelman CJ in Bruce at 186, assessing whether the decision-maker has given a proper, genuine and realistic consideration to a mandatory manner must be approached with caution, with care to avoid any impermissible reconsideration of the merits of the decision." 1. An alleged failure to give 'sufficient weight' to evidence does not identify a question of law: AHB v NSW Trustee and Guardian [2017] NSWCATAP 79 at [30]; House v R (1936) 55 CLR 499 at 504. The correct approach is to set aside administrative decisions where the weight given to a factor is considered 'manifestly unreasonable', or where a finding or inference is made in the absence of supporting evidence: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208 at [70]-[75]) 2. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. Grounds of appeal 1. In light of the fact that the appellant was self-represented, we have sought to determine from his attachment to the notice of appeal what his grounds of appeal are and whether they can be characterised as questions of law or otherwise. 2. In our view the appellant raised four categories of appeal grounds as follows: 1. First, that the Tribunal's award of damages under s55(2)(a) of the PPIP Act was inadequate, including by reason of the following: 1. The Tribunal ought to have been satisfied that the 2014 Conduct caused the appellant financial loss in respect of the denial of his insurance claim by MetLife, including by reference to the fresh evidence; 2. The Tribunal erred in placing weight upon the letter of 21 March 2019 from the First State Superannuation Scheme; 3. The Tribunal erred in placing weight upon Ms Wendy Banning's evidence which was factually inaccurate. 1. Second, errors were contained in the reasons for decision. 2. Third, the Tribunal erred in failing to order an apology. 3. Fourth, the Tribunal erred in failing to make the other orders sought by the appellant. Relevant Legislation 1. We repeat the relevant legislative provisions which the Tribunal below took as being relevant at [47]-[57]: 47. The following legislation is relevant to an administrative review of the conduct of the respondent in 2014 that was the subject of the internal review application. PPIP Act 48. Part 5 (ss 52-55) deals with "Review of certain conduct". Section 52, which deals with the application of Part 5, relevantly provides: 52 Application of Part (1) This Part applies to the following conduct: (a) the contravention by a public sector agency of an information protection principle that applies to the agency, … (2) A reference in this Part to conduct includes a reference to alleged conduct. 49. Section 53, which deals with "Internal review by public sector agencies", relevantly provides: 53 Internal review by public sector agencies (1) A person (the applicant) who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct. … (7) Following the completion of the review, the public sector agency whose conduct was the subject of the application may do any one or more of the following: (a) take no further action on the matter, (b) make a formal apology to the applicant, (c) take such remedial action as it thinks appropriate (eg the payment of monetary compensation to the applicant), (d) provide undertakings that the conduct will not occur again, (e) implement administrative measures to ensure that the conduct will not occur again. 50. Section 55, which deals with "Administrative review of conduct by Tribunal", relevantly provides: 55 Administrative review of conduct by Tribunal (1) If a person who has made an application for internal review under section 53 is not satisfied with: (a) the findings of the review, or (b) the action taken by the public sector agency in relation to the application, the person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct that was the subject of the application under section 53. … (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, (b) an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice, (c) an order requiring the performance of an information protection principle or a privacy code of practice, (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, (f) an order requiring the public sector agency not to disclose personal information contained in a public register, (g) such ancillary orders as the Tribunal thinks appropriate. (3) …. (4) The Tribunal may make an order under subsection (2)(a) only if: (a) …, and (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. (5) …. HRIP Act 51. The HRIP Act, which relevantly regulates the manner in which public sector agencies collect, use, store and disclose health information, contains 15 health privacy principles set out in Schedule 1 (s 4(1) definition of Health Privacy Principle or HPP). 52. "Personal information" is defined in s 5(1) as: … information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion. 53. "Health information" is defined in s 6(1) and relevantly provides: 6 Definition of "health information" In this Act, health information means: (a) personal information that is information or an opinion about: (i) the physical or mental health or a disability (at any time) of an individual, or 54. Section 11, which deals with "How this Act applies to organisations", provides: 11 How this Act applies to organisations (1) This Act applies to every organisation … that collects, holds or uses health information. Note. The term organisation means a public sector agency or a private sector person. (2) An organisation to whom or to which this Act applies is required to comply with the Health Privacy Principles …. (3) An organisation must not do any thing, or engage in any practice, that contravenes a Health Privacy Principle… 55. Section 17, which deals with specific exemptions for various public sector agencies including the NSW Police Force, relevantly provides: This Act does not apply to … the NSW Police Force … except in connection with the exercise of their administrative and educative functions. 56. Section 21, which deals with complaints against public sector agencies, relevantly provides: 21 Complaints against public sector agencies (1) The following conduct by a public sector agency is conduct to which Part 5 (Review of certain conduct) of the PPIP Act applies: (a) the contravention of a Health Privacy Principle that applies to the agency, (b) …. (2) For that purpose, a reference in that Part: (a) to personal information is taken to include health information, and (b) …, and (3) … 57. Schedule 1 relevantly includes the following Health Privacy Principles dealing with: 1. th e collection of health information (the collection HPP): 1 Purposes of collection of health information (1) An organisation must not collect health information unless: (a) the information is collected for a lawful purpose that is directly related to a function or activity of the organisation, and (b) the collection of the information is reasonably necessary for that purpose. 2. the accuracy of health information (the accuracy HPP): 9 Accuracy An organisation that holds health information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading. 3. the use of health information (the use HPP): 10 Limits on use of health information (1) An organisation that holds health information must not use the information for a purpose (a secondary purpose) other than the purpose (the primary purpose) for which it was collected unless … 4. the disclosure of health information (the disclosure HPP): 11 Limits on disclosure of health information (1) An organisation that holds health information must not disclose the information for a purpose (a secondary purpose) other than the purpose (the primary purpose) for which it was collected unless … Grounds of Appeal – Inadequacy of the award of damages 1. The appellant seeks an award of damages of $40,000, being the maximum payable amount admissible under s55(2)(a) of the PPIP Act. The appellant claimed he suffered psychological distress as well as financial loss as a result of the 2014 Conduct. 2. The appellant submitted that the Tribunal ought to have found that the 2014 Conduct caused or materially contributed to MetLife rejecting his TPD claims 3. Paragraph 19 of the Decision includes the following: On 21 March 2019, FSS in its letter to the applicant (the 21 March 2019 letter) relevantly provided the following answer to question 6 of the 6 February 2019 letter: As mentioned above, the employer information is one piece of information considered in the assessment. The information provided by the employer as to the condition which caused you.to cease work did not impact the Trustee's decision to decline your claim. It is not medical information. It is an Employer Statement providing 'information relevant to your employment history. We therefore confirm the amended Employer Statement does not cause MetLife, or the Trustee, to revisit its decision on your claim. 1. The appellant referred to the statement of the Tribunal at [70] that the Tribunal accepted "the evidence contained in the 21 March 2019 letter that MetLife in declining the TPD claims did not rely on the false information in the 2014 employer's statement." Appellant's submissions 1. The appellant submitted that the source of the information, Ms Panagenous, Head of Member of Operation, First State Super (FSS), is not an employee of MetLife and has not stated an authority to speak or act on MetLife's behalf. 2. The appellant submitted that the Tribunal's determination that the appellant was not entitled to any damages for financial loss appears to be based wholly on the opinion of Ms Panagenous, an employee of FSS. 3. According to the appellant, the Tribunal erred in relying on the erroneous and unsubstantiated opinion of Ms Panagenous, rather than an authorised person qualified to speak on behalf of MetLife. Respondent's submissions 1. The respondent referred to the principle of the Tribunal in BVS v Sydney Local Health District [2015] NSWCATAD 171 where it was stated that compensation for alleged financial loss and alleged psychological and physical harm can only be considered where the Tribunal finds that the alleged loss and harm was because of or caused by the contravening conduct of the agency. 2. The respondent notes the First State Super correspondence dated 21 March 2019 was evidence before the Tribunal, see [70] of the Decision, and it was open to the Tribunal to consider and rely on that evidence when making its determination. 3. The respondent submitted that for the Tribunal to rely on the evidence before it when making its decision does not amount to an error of law. Consideration 1. The Tribunal at [68] of the Decision confirmed the following principles apply to any determination of whether loss or damage was suffered because of conduct the subject of the internal review application under s53 of the PPIP Act: 1. The applicant bears the onus of "establishing the causal link between the breach of privacy and the damage allegedly suffered": APV v Department of Finance and Services [2016] NSWCATAD 168 at [15]; 2. The principle of causation which is to be applied is the common law test of causation. The content of that test in the privacy context is that if the agency's breaches "materially contributed" to the loss or damage suffered, it will be regarded as a cause of the damage or loss, despite other factors or conditions having played an even more significant role in producing the loss or damage. As long as the breach materially contributed towards the damage, a causal connection will ordinarily exist even though the breach without more would have not brought on the damage: CYH v Family and Community Services [2018] NSWCATAD 84 at [94]-[96]. 1. Further, the Tribunal at [69(1)] said that the applicant has a responsibility to place material before the Tribunal in support of a claim for financial loss. The agency must have the opportunity to test that material: GR v Director – General, Department of Housing (GD) [2009] NSWADTAP 26 at [38]. 2. In our view there was no error of principle or of law in this approach of the Tribunal. 3. The Tribunal's conclusion at [70] was as follows: "I am not satisfied that the applicant has adduced any evidence that he has suffered any financial loss. I accept the evidence contained in the 21 March 2019 letter that MetLife in declining the TPD claims did not rely on the false information in the 2014 Employer Statement. Accordingly, I find that the applicant is not entitled to any damages for financial loss under s55(2)(a) and (4)(b) of the PPIP Act because of the lack of evidence establishing any such loss." 1. The appellant has not submitted that there was any objection to the evidence of the correspondence from First State Super dated 21 March 2019 being received by the Tribunal. 2. We agree with the respondent that to rely on the evidence before it when making its decision does not amount to an error of law. We also agree that it was open to the Tribunal to rely on this evidence. 3. Apart from any other matter, we also agree with the Tribunal that the appellant, who bears the onus of proof, did not place before the Tribunal any evidence to establish that there was a causal link between the declining of the TPD claims and the 2014 Conduct. 4. Accordingly, we reject this grant of appeal and we decline to grant the appellant leave to appeal in respect of this ground of appeal. Ground of appeal – errors contained in Ms Banning's statement Appellant's submissions 1. The appellant submitted that the statement of Ms Banning of 2 July 2019 which was placed before the Tribunal contains false information. This, the appellant submitted, was the subject of his evidence in his statutory declaration of 11 July 2019 at pages 4-12. 2. The appellant referred to the fact that the Tribunal at [42(5)] of the Decision contains reference to the following words in Ms Banning's statement, "…. the applicant's psychological injury was an issue being considered as part of his medical discharge." 3. The appellant submitted that this comment misrepresents Dr Champion's evidence and is one example of a number of errors contained in Ms Banning's sworn statement. According to the appellant, Dr Champion does not associate a psychological involvement to the appellant's condition. 4. The appellant complains that the Tribunal has not stated that it has discounted the errors in Ms Banning's statement in its decision. 5. The appellant states that he is "concerned the Tribunal may have factored some of the false information Ms Banning provided in her statement into the Tribunal Determination process." Respondent's submissions 1. The respondent noted that while Ms Banning was cross-examined by the appellant in relation to her evidence in the first proceedings, see [32(1)] and [42] of the Decision, she was not cross-examined before the Tribunal in the second hearing. The respondent informed the Tribunal that Ms Banning was not called for cross-examination. 2. The appellant did not dispute these submissions. He agreed he did not cross-examine Ms Banning at the second hearing. 3. The respondent submits it was open to the Tribunal to accept Ms Banning's evidence in circumstances where the appellant had the reasonable opportunity to test Ms Banning's evidence in the proceedings by way of cross-examination but declined to do so. The respondent submits it was open to the Tribunal to rely on Ms Banning's evidence and to do so in the circumstances did not amount to an error of law. Consideration 1. We agree with the respondent's submission that any reliance upon Ms Banning's evidence in the proceedings does not amount to an error of law. 2. We decline to grant the appellant leave to raise as a ground of appeal any reliance by the Tribunal on the evidence of Ms Banning. We do so for two reasons. 1. First, we agree with the respondent that it was open to the Tribunal to place some reliance on Ms Banning's evidence in circumstances where that evidence was not tested in cross-examination. 2. Second, we are not convinced or satisfied that the Tribunal in fact placed any weight on the information in Ms Banning's statement in the ultimate determination process of the Tribunal. The evidence of Ms Banning, we were informed, was tendered at the first hearing by way of background on the issue of the time limit question. The Tribunal, whilst quoting some sections of Ms Banning's evidence, as well as referring to the appellant's statutory declaration, does not rely upon that evidence in any of the key findings or reasoning of the Tribunal when dealing with the appellant's actual claims. 1. In our view, the section of Ms Banning's statement referred to by the Tribunal has no relevance on the determination of the appellant's claim. 2. Accordingly, we decline to grant leave to the appellant to raise this ground of appeal. Ground of appeal – fresh evidence Appellant's submissions 1. The appellant sought to rely upon the letter from MetLife dated 17 January 2020 attaching file notes in respect of his Claim created on 30 September 2015. 2. The appellant contented that he had made previous unsuccessful attempts to obtain his personal information from First State Super and MetLife. The letter from MetLife of 17 February 2020 refers to the appellant's Freedom of Information request dated 17 November 2019. The letter states that MetLife is not subject to the Freedom of Information Act 1982 as it only applies to government held information. Nevertheless, in "good faith" certain information has been released to the appellant. 3. This includes the assessor's comments as follows: "Note this is a physical claim – condition - bilateral lower limp pain, memory loss, psychotic illness & pain disorder" 1. The appellant submits that this is fresh evidence not available at the original hearing of the Tribunal. He further submits that the assessor taking the precise wording from the employer's statement, being "psychotic illness", shows that this description of his condition had an influence on MetLife. He further submitted that it was a reasonable inference to draw that MetLife would be pre-disposed against the appellant's claim if it was described as "psychotic illness". This would suggest that the appellant was not a reliable person and his description of his symptoms would not and should not be trusted. 2. The appellant submitted that in light of this further material the Appeal Panel should receive the evidence and hold that there was a causal link between the rejection of his Claim and the 2014 Conduct, and that this has caused him financial loss. Respondent's submissions 1. The respondent opposed the receipt of the fresh evidence. The respondent submitted that the additional evidence did not in any way establish any causal link between the rejection of the Claim and the 2014 Conduct. Consideration 1. There was a discussion of the issues dealing with the nature of internal appeals relevant to the receipt of further evidence in Ros v Commissioner of Police [2020] NSWCATAP 70. At [32] the Appeal Panel stated that having regard to the guiding principles under s 36 of the CAT Act, an appeal is one akin to a rehearing, with the ability to receive further evidence if appropriate. It summarises some of the relevant authorities at [33] as follows: There are a number of other authorities which set out the principles on which the Appeal Panel might consider an application for admission of further evidence. Generally speaking, the further evidence sought to be admitted would have to relate to the Tribunal's decision at first instance and have been evidence which was relevant at the time to that decision (BCL v NSW Trustee and Guardian [2014] NSWCATAP 18 at [26]-[28]). Whether it is likely the further evidence would have produced a different result at the Tribunal is relevant: BCL v NSW Trustee and Guardian [2014] NSWCATAP 18 at [26]-[28]; Mielczarek v Commissioner of Fair Trading [2016] NSWCATAP 217; Building Professionals Board v Hans [2008] NSWADTAP 13. Any potential prejudice to the other party upon the receipt of further evidence is also relevant: Lettau v Artwork Transport Pty Ltd at [25]. Whether the further evidence would allow the Appeal Panel to consider whether, with the benefit of hindsight, it has been demonstrated that serious injustice has resulted or will, in fact, result from the exercise of the Tribunal's discretion, may also be relevant: ZNX v ZNY [2020] NSWCATAP 41 at [25]. 1. In our view, the file note from the assessor describing the claim as involving in part a "psychotic illness" does not show any causal link between the 2014 Conduct and the rejection of the TPD claims. The submission by the appellant that there was some causal connection between the two simply amounted to speculation rather than any rational inference being able to be drawn as submitted for by the appellant. As a result, we are not satisfied that the further evidence would have produced a different result at the Tribunal or that the further evidence demonstrates that the appellant has suffered any serious injustice by the Tribunal's decision. 2. Accordingly, we decline to allow the fresh evidence, and reject this ground of appeal. Ground of appeal – inadequacy of the $1,000 award of damages Appellant's submissions 1. The appellant submitted that "any fair-minded person" would question the adequacy of the $1,000 damages in light of what was proven to have occurred to the appellant. Respondent's submissions 1. The respondent submitted that the award of statutory damages under the PPIP Act is a discretionary matter for the Tribunal. 2. In DQA v Secretary, Department of Family and Community Services [2019] NSWCATAD 156 at [111] the Tribunal confirmed that the discretionary order of damages under s55 of the PPIP Act meant that even if the evidence was sufficient to establish a breach of the section, the Tribunal might make no order as to damages even if it finds a causal link between the contravention and the harm suffered: citing NW v New South Wales Fire Brigade (No 2) [2006] NSWADT 61 (at [24]). 3. The respondent submitted that it was open to the Tribunal, exercising its discretion, to award damages in the amount of $1,000 to the appellant in circumstances where: 1. The Tribunal was satisfied there was a causal link between conduct of the respondent agency and psychological distress suffered by the appellant (see [71] of the Decision); 2. There was no evidence that the appellant had suffered any financial loss: (see [70] of the Decision); 3. The amount of damages awarded should be at the lowest scale because of the absence of evidence of any consequential impact of the distress on the appellant: see CJU v SafeWork NSW [2018] NSWCATAD 300 at [135] and [136]. 1. The respondent accepted that there was evidence before the Tribunal as to distress suffered by the appellant in the evidence of Dr Van Niekerk dated 9 October 2019. 2. The respondent noted that the statutory maximum amount of $40,000 pursuant to s55(2)(a) of the PPIP Act in relation to damages is reserved for serious breaches. As such, when considering a payable compensation under the PPIP Act, the respondent submitted that the Tribunal should approach and consider the amount ordered in the context of that $40,000 statutory limit: see HP v Hunter New England Health Services [2009] NSWADT 186 and BVS at [74]. 3. The respondent submitted the Tribunal did not err in its decision to award the appellant $1,000 in damages having regard to the principles set out above and in the evidence before it. Consideration 1. The Tribunal agrees with the submissions of the respondent. 2. The Tribunal summarised the relevant principles in respect of the award of damages at [69] as follows: The Appeal Panel of the Tribunal has decided that the following principles are applicable in determining whether damages should be awarded for financial loss, or psychological or physical harm, under s55(2)(a) and (4)(b) of the PPIP Act: (1) the applicant has a responsibility to place material before the Tribunal in support of such a claim. The agency must have the opportunity to test that material: GR v Director-General, Department of Housing (GD) [2004] NSWADTAP 26 at [38]; (2) there is no entitlement to claim any loss for reputational damage unless that loss is financial: CPJ v The University of Newcastle [2017] NSWCATAD 350 at [30]; (3) damages may be awarded for distress in the absence of independent evidence of psychological harm, where there was acceptance from the submissions and material filed by the applicant, and an assessment of the applicant when she participated in the main appeal hearing, that she has suffered emotional distress and harm, along the lines that she has asserted, because of the aspect of the conduct of respondent in relation to which there was a finding of contravention: AOZ v Rail Corporation NSW (No 2) [2015] NSWCATAP 179 at [20] and [30]; (4) an award of damages for distress should be at the lower end of the scale because of the absence of evidence as to the consequential impact of the distress upon the applicant, and determined the amount should be $1,000: CJU v SafeWork NSW [2018] NSWCATAD 300 at [135], [138]; (5) the award of statutory damages in PPIP Act matters remains a discretionary one even where a causal link sufficient to satisfy s 55(4)(b): NW v New South Wales Fire Brigades (No 2) [2006] NSWADT 61 at [23]-[24]. The discretion not to make an award of compensation has been exercised where the Tribunal has been satisfied that the applicant has already been granted an award of damages in respect to the disclosure of the personal information: JO v Director General, NSW Department of Health (No 2) [2007] NSWADT 256 at [27]; (6) ordinarily where a breach is demonstrated, some sanction should be applied to the agency, unless it can be shown that there it has responded in an adequate way already to the problem identified, and no order therefore is needed: Vice-Chancellor Macquarie University v FM (No 2) (GD) [2004] NSWADTAP 37 at [54]. 1. The Tribunal continued at paragraph [71] as follows. I accept the evidence of Dr van Niekerk in the 9 October 2019 letter that the 2014 Employer Statement caused the applicant psychological distress and harm which has negatively impacted his wellbeing. I also am satisfied from what the applicant said and the manner in which he spoke at the second hearing that the applicant has suffered psychological distress as a result of the 2014 Conduct. There was no contrary evidence. There was no direction by the Tribunal that NCAT Procedural Direction 3 dealing with expert evidence applied to these proceedings. Accordingly, I am satisfied that the contravention of the accuracy HPP by the respondent in relation to the 2014 Conduct materially contributed to the psychological distress and harm which he has suffered. I find that the applicant is entitled to damages of $1,000.00 under s55(2)(a) and (4)(b) of the PPIP Act for the distress he suffered from the 2014 Conduct. I am not satisfied that I should exercise my discretion not to make such an award of damages as I consider that an apology is not a sufficient response to the 2014 Conduct. 1. In our view, there was no error of principle or of law in the conclusion of the Tribunal to award $1,000 in light of the evidence before it. As stated by Dixon, Evatt and McTiernan JJ in House v R (1936) 55 CLR at 504: It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. 1. In our view the award was open to be made by the Tribunal and we accordingly dismiss this ground of appeal Ground of appeal – failure to order an apology Appellant's submission 1. The appellant referred to [76] of the Decision where the Tribunal stated that "while I accept that [sic] find that the respondent contravened the Accuracy HPP in relation to the 2014 Conduct and that it is appropriate that the respondent make a formal apology to the applicant" but the Tribunal overlooked ordering that an apology should be made. Respondent's submission 1. The respondent did not make any submissions on the question of whether or not the Appeal Panel should order an apology. 2. The Appeal Panel asked Ms Tipene, solicitor who appeared for the respondent, whether the respondent, who had originally decided to issue a formal apology, would still be doing so. 3. Ms Tipene said that she was not sure of this and believed that the respondent has taken the view that the Tribunal found that it was not appropriate to grant an apology and that damages was the appropriate remedy. 4. She indicated that she could seek instructions as to whether the respondent was willing to grant an apology. Consideration 1. The whole of [76] of the Decision is as follows: While I accept that find that the respondent contravened the Accuracy HPP in relation to the 2014 Conduct and that it is appropriate that the respondent make a formal apology to the applicant, I do not agree that the apology to be given to the applicant by the respondent will have appropriately addressed this contravention. Accordingly, I find that the applicant is entitled to damages of $1,000.00 under s55(2)(a) and (4)(b) of the PPIP Act from the respondent by way of compensation for the loss or damage he has suffered because of the 2014 Conduct. Otherwise, I find that no action should be taken in relation to the 2014 Conduct. 1. In our view, the sentence "I do not agree that the apology to be given to the applicant by the respondent will have appropriately addressed the contravention" leads us to think that it is likely that the Tribunal assumed that the apology would be granted, if it had not already been granted. 2. It was not disputed by the respondent that the Tribunal had power to order the making of a formal apology. Under s53(7)(b) of the PPIP Act, following the completion of the review, the public sector agency whose conduct was the subject of the application may make a formal apology to the applicant. By s 63(2) of the Administrative Decisions Review Act 1997, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. Section 63(2) of the Administrative Decisions Review Act 1997 provides as follows: (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 1. Further, s30(2)(b) of the CAT Act confirms that the Tribunal may exercise the functions that are conferred or imposed by the Administrative Decisions Review Act 1997 or enabling legislation in connection with the conduct or resolution of the proceedings. 2. In our view, and given that the CAT Act postdates the PPIP Act, the Tribunal may either exercise the functions conferred or imposed upon the public sector agency pursuant to s53(7) as well as make any of the orders provided for in s 55(2) of the PPIP Act. 3. In light of the earlier decision by the respondent that it was to make a formal apology to the appellant and in the absence of any submission against such a course by the respondent, we are of the opinion that it is appropriate to vary the Decision of the Tribunal to affirm that part of the decision under review to make a formal apology to the appellant. We note that pursuant to s81(1)(b) of the CAT Act the Appeal Panel in determining an internal appeal may vary the decision under appeal. Appeal ground – other orders Appellant's submission 1. As set out in his statutory declaration made on 11 October 2019, the appellant sought the following additional remedies: 1. That the NSW PF take whatever steps necessary to locate any and all documentation in their possession that contain a reference to, or suggestion of my having, or had, a sufferance or suggestion of "psychotic illness" and to permanently remove from that documentation any such reference; 2. That the NSW PF take whatever steps necessary to locate any and all electronic systems accessible to NSW PF any reference to, or suggestions of my having, or had, a sufferance or suggestion of "psychotic illness" and to permanently remove from that electronic system any such reference. 1. The appellant submits that the Tribunal ought to have ordered the respondent to take necessary measures to remove from their documentary records any references to psychotic illness. 2. The appellant referred to the original amendment agreement between the parties referred to by the Tribunal at [28(6.4) and (6.5)] as follows: "… I also note the content of your HRIP amendment confirmation (dated 23 September 2011) and the amendment agreement (stated September 2011) the latter of which specifically confirms the reference to you having a psychotic illness will be corrected on NSW PF records. …. I consider the relevance of you having a psychotic illness on the 2014 claim form to be inaccurate and at a minimum to be inconsistent with the position agreed by the amendment agreement." 1. The appellant also referred to [75] of the Decision which states: "I am not satisfied I should make the other orders as sought by the applicant. I am not persuaded that they are related to the conduct of the respondent in 2014 that was the subject of the internal review application, being its conduct in completing and providing the 2014 Employer Statement to MetLife." 1. The appellant in his written submissions stated the following: "NSW PF made a commitment to me to remove reference to my having a psychotic illness from their records. All parties are in agreement that involvement of a psychotic illness is inaccurate. NSW PF have yet to perform the necessary work to removing psychotic illness references from their records. The Tribunal should agree to having the respondent make all the necessary amendments to its records to remove reference to "psychotic illness" and memory loss. I appreciate the Tribunal order is limited and only to the 2014 Employer Statement involvement, however, I do not see how my, or NSW PF, best interests would be served by needing to repeat all of these proceedings the next time another NSW PF document alleging "psychotic illness" or "memory loss" is uncovered. There is a harm for me in the possibility NSW PF have on file other documentary reference to these conditions whereupon, if considered external and separate to these proceedings, maybe considered as a genuine reference to diagnostic diagnosis. This would be unacceptable." Respondent's submissions 1. The respondent in his written submissions did not respond to this ground of appeal. 2. The Tribunal at [74] noted that the respondent had also made no written or oral submissions to it as to the other orders sought by the appellant. Consideration 1. The Tribunal at [75] stated the following: "I am not satisfied that I should make the other orders sought by the applicant. I am not persuaded that they are related to the conduct of the respondent in 2014 that was the subject of the internal review application, being its conduct in completing and providing the 2014 Employer Statement to MetLife." 1. In our view, there are a number of sources of power which may possibly support the making of the orders sought by the appellant. We have decided to remit this ground of appeal to the Senior Member for reconsideration in accordance with law. In light of this, we do not need to put forward any concluded view on all of these potential sources of power, particularly, in the absence of any submissions from the respondent on this issue. It will suffice if we indicate our current views as follows. 2. Under s53(7)(e) of the PPIP Act, following the completion of the review, the public sector agency whose conduct was the subject of the application may "implement administrative measures to ensure that the conduct will not occur again". As discussed above, by s63(2) of the Administrative Decisions Review Act 1997 and s30(2)(b) of the CAT Act, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision in connection with the conduct or resolution of the proceedings. This would include the making of a decision as to whether or not the public sector agency should implement administrative measures to ensure that the conduct will not occur again. Orders of that kind have been made by the Tribunal, including for example in BVS v Sydney Local Health District [2015] NSWCATAD 171. 3. In our opinion, the orders sought by the appellant may fairly be described as the implementation of administrative measures to ensure that the conduct the subject of the internal review application will not occur again. The internal review application requested both that an amended Employer Statement be provided, and also "…that my NSWPF medical record be re-visited and whatever action necessary be taken to ensure such as this cannot occur again". In our view, given the way in which the internal review application was framed, the conduct the subject of the internal review application could properly be described as the recording of the appellant as suffering from a "psychotic illness" rather than merely the inclusion of that statement in the 2014 Employer Statement. If the conduct was to be too narrowly construed, there would be no or little role for any decision to put in place administrative measures to ensure that the "conduct" will not occur again. Any such decision is of course a discretionary remedy depending on all of the circumstances and the submissions of the parties. 4. Section 55(2) of the PPIP Act is as follows: "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, (b) an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice, (c) an order requiring the performance of an information protection principle or a privacy code of practice, (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, (f) an order requiring the public sector agency not to disclose personal information contained in a public register, (g) such ancillary orders as the Tribunal thinks appropriate. 1. By s 4A of the PPIP Act, except as provided by the HRIP Act or the PPIP Act, "personal information" excludes health information within the meaning of the HRIP Act. As set out above, s 21 of the HRIP Act provides that Part 5 of the PPIP Act applies to the conduct of a public sector agency that is a contravention of an HPP that applies to the agency, and for that purpose a reference in that Part to personal information is taken to include health information. 2. Section 55(2)(c) of the PPIP Act empowers the Tribunal to make an order requiring the performance of an information protection principle. Section 15 of the PPIP Act includes the following information protection principle: 15 Alteration of personal information (1) A public sector agency that holds personal information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the personal information— (a) is accurate, and (b) having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading. (2) If a public sector agency is not prepared to amend personal information in accordance with a request by the individual to whom the information relates, the agency must, if so requested by the individual concerned, take such steps as are reasonable to attach to the information, in such a manner as is capable of being read with the information, any statement provided by that individual of the amendment sought. (3) If personal information is amended in accordance with this section, the individual to whom the information relates is entitled, if it is reasonably practicable, to have recipients of that information notified of the amendments made by the public sector agency. (4) This section, and any provision of a privacy code of practice that relates to the requirements set out in this section, apply to public sector agencies despite section 25 of this Act and section 21 of the State Records Act 1998. (5) The Privacy Commissioner's guidelines under section 36 may make provision for or with respect to requests under this section, including the way in which such a request should be made and the time within which such a request should be dealt with. (6) In this section (and in any other provision of this Act in connection with the operation of this section), public sector agency includes a Minister and a Minister's personal staff. 1. Schedule 1 of the HRIP Act includes the following HPP which is broadly similar to the above information protection principle: 15 Alteration of personal information (1) A public sector agency that holds personal information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the personal information— (a) is accurate, and (b) having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading. (2) If a public sector agency is not prepared to amend personal information in accordance with a request by the individual to whom the information relates, the agency must, if so requested by the individual concerned, take such steps as are reasonable to attach to the information, in such a manner as is capable of being read with the information, any statement provided by that individual of the amendment sought. (3) If personal information is amended in accordance with this section, the individual to whom the information relates is entitled, if it is reasonably practicable, to have recipients of that information notified of the amendments made by the public sector agency. (4) This section, and any provision of a privacy code of practice that relates to the requirements set out in this section, apply to public sector agencies despite section 25 of this Act and section 21 of the State Records Act 1998. (5) The Privacy Commissioner's guidelines under section 36 may make provision for or with respect to requests under this section, including the way in which such a request should be made and the time within which such a request should be dealt with. (6) In this section (and in any other provision of this Act in connection with the operation of this section), public sector agency includes a Minister and a Minister's personal staff. 1. We are of the opinion, that in the case of a contravention of an HPP, the effect of s21 of the HRIP Act is that s55(2)(d) of the PPIP Act applies and will include or incorporate any relevant information protection principle. The result then is that where any such information protection principle uses the term "personal information", such term is taken to include health information. We think this is the better construction, even though the actual information protection principle which uses the term "personal information" does not appear in Part 5 of that Act. Otherwise, s55(2)(c) would have no work to do in the case of an alleged contravention of an HPP which appears to be contrary to the statutory intent as revealed by s 21 of the HRIP Act. 2. We are also inclined to the view that in the current case, whilst the HPP which was contravened was the Accuracy HPP, s55(2)(c) of the PPIP Act empowers the Tribunal to order the performance of the information protection principle provided for in s15 of the PPIP Act in so far as any amendment or correction is in respect of removing any reference to the appellant having a psychotic illness from NSWPF's records. This is because such a course of conduct is clearly related to the found contravention and could be regarded as a measure to ensure such contravention is amended or corrected in the case of other documents held by the NSWPF. We note that in 2011 the NSWPF agreed to such an amendment or correction of its records. 3. Next, s55(2)(d) of the PPIP Act empowers the Tribunal to order the correction of the 2014 Employer Statement. This has already occurred. In our view, this provision of the Act would also empower the Tribunal to make an order that any other documents or information that has been disclosed by the respondent which may describe the appellant as having a "psychotic illness" also be corrected. 4. Section 55(2)(g) permits the Tribunal to make an "ancillary order". An ancillary order is an order that is "incidental or supplemental to" an order the Tribunal is empowered to make (see for example, New South Wales Crime Commission v Ollis [2006] NSWCA 76 at [28] and Housing NSW v Hamilton [2015] NSWCATAP 136 at [39]). 5. In our opinion, the Tribunal pursuant to s55(2)(g) of the PPIP Act could make the orders sought by the appellant if it thought this was appropriate. In our view, such orders could be described as being "supplemental or incidental to" the power to make an order for the correction to the 2014 Employer Statement or any other documents or information disclosed or held by the respondent which may describe the appellant as having a "psychotic illness". 6. This is the case because the incorrect information in the 2014 Employer Statement appears to have been uncorrected despite the amendment agreement reached previously. This could give rise to a suspicion, as expressed by the appellant, that there may be other documents held or disclosed by the respondent that similarly contain incorrect information about the appellant having a "psychotic illness" about which the appellant is currently unaware. An order requiring reasonable searches to be made of its records to ensure compliance with both the relevant information protection principle and the amendment agreement could be described as being reasonably necessary and directly flowing from the finding of a contravention of the Accuracy HPP in the present circumstances. Accordingly, an order as sought by the appellant can fairly be described as being an "ancillary order" that flows from the finding of breach of the Accuracy HPP and the other primary sources of power as described above. 7. In our view, the Tribunal may have proceeded under the misapprehension of law that it was not empowered to make the other orders sought by the appellant by reason of a lack of causal or sufficient relationship between the orders sought and the 2014 Conduct the subject of the internal review application. For the reasons given above, we are satisfied that the Tribunal has the power to make the orders sought by the appellant. We are not satisfied that the Tribunal turned its mind to whether the other orders sought by the appellant should be made on the assumption that it had power to make them. This amounts to an error of law. 8. By s 63(1) of the Administrative Decisions Review Act 1997, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. This will include the relevant provisions of the PPIP Act and the HRIP Act, some of which we have referred to above. 9. In our view, this ground of appeal should be upheld, and the matter remitted to the Tribunal for reconsideration in accordance with these reasons. Ground of appeal – errors in the decision Appellant's submission 1. The appellant submitted that there were some errors in the Decision as follows. At [11] the Decision states "on 1 December 2014, NSW PF completed, signed and provided directly to MetLife an employer's statement for total and permanent disability claim form". 2. The appellant submitted that the form was posted to FSS not directly to MetLife. 3. Second, the appellant referred to [12] of the Decision which states "only shortly before 6 December 2017, MetLife declined the TPD claims." The appellant submitted that MetLife declined the TPD claim on 2 February 2016. The appellant submitted orally that it was very important for him that information about his claim was dealt with accurately. Respondent's submissions 1. The respondent submitted that the alleged factual errors at [11] and [12] are not appropriately grounds for appeal. 2. The respondent submitted that these matters are more appropriately dealt with under s63 of the CAT Act. 3. The respondent submitted that these minor factual errors do not constitute an error of law. Consideration 1. The Appeal Panel agrees with the respondent's submissions. 2. These matters are not errors of law and we decline to grant leave to appeal to deal with them for the following reasons. 1. First, in our opinion they do not affect the outcome of the Decision and hence do not give rise to any miscarriage of justice likely to be suffered by the appellant. 2. Further, the general principle is that grounds of appeal need to deal with the orders of the Tribunal not merely statements of reasons. 3. Finally, in light of the fact that the matter is to be remitted to the Tribunal we point out to the appellant, as stated by the respondent, that these two minor issues of possible factual errors in the statement of reasons can be dealt with by the appellant by way of submissions to the Tribunal. Orders 1. The orders of the Appeal Panel shall be as follows: 1. Vary the decision of the Tribunal of 10 January 2020 to the following: 1. Pursuant to s63(2) of the Administrative Decisions Review Act 1997 (NSW) the Tribunal affirms that part of the respondent's internal review decision of 24 September 2019 to make a formal apology to the applicant because of the conduct that was the subject of the application for internal review of the applicant made on 18 February 2019. 2. Order pursuant to s 55(2)(a) and (4)(b) of the Privacy and Personal Information Protection Act 1998 (NSW) that the respondent pay to the applicant $1,000.00 by way of compensation for the loss or damage he has suffered because of the conduct that was the subject of the application for internal review of the applicant made on 18 February 2019. 1. Remit the question of whether or not the Tribunal should make the other orders sought by the Appellant in his statutory declaration made on 11 October 2019 to the Senior Member for reconsideration in accordance with these reasons and otherwise according to law. 2. Otherwise dismiss the Appeal. ********** 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 Amendments 08 October 2021 - Case name disambiguation 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: 08 October 2021