Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Altaranesi v Administrative Decisions Tribunal [2012] NSWCA 19
• Hearing dates: 21 September 2011
• Decision date: 28 February 2012
• Before: Campbell JA at [1]; Meagher JA at [2]; Handley AJA at [104]

Decision

(1) The appeal be dismissed.

(2) The appellant pay the second respondent's costs of the appeal.

[ Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: ADMINISTRATIVE LAW - privacy - disclosure of personal and health information - ADT review of internal review of conduct - appeal to Appeal Panel on questions of law - whether Appeal Panel erred in not extending appeal to review of merits - Privacy and Personal Information Protection Act 1998, ss 52, 53 and 55 - Health Records Information Privacy Act 2002, s 21; ADMINISTRATIVE LAW - delay in provision of information - meaning of "excessive delay"; COSTS - whether error in exercising discretion to award costs - Administrative Decisions Tribunal Act, s 88(1A)
• Legislation Cited: Administrative Decisions Tribunal Act 1997; Freedom of Information Act 1989 (Cth); Privacy and Personal Information Protection Act 1998; Health Records Information Privacy Act 2002; Workplace Injury Management and Workers Compensation Act 1998
• Cases Cited: AT v Commissioner of Police, NSW [2010] NSWCA 131; B&L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; (2008) 74 NSWLR 481; Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389; Jones v Scully [2002] FCA 1080; (2002) 120 FLR 243; Health Care Complaints Commission v Karalasingham [2007] NSWCA 267; Jones v Scully [2002] FCA 1080; (2002) 120 FLR 243; Kadian v Richards [2004] NSWSC 382; (2004) 61 NSWLR 222; King-Ansell v Police [1979] 2 NZLR 531; Koowarta v Bjelke-Petersen (1982) 153 CLR 168; (1982) 153 CLR 168; KT v Sydney South West Area Health Services [2010] NSWADT 94; KT v Sydney South West Area Health Service [2010] NSWADT 102; KT v South Sydney West Area Health Service (GD) [2010] NSWADTAP 60; Lloyd v Veterinary Surgeon's Investigating Committee [2005] NSWCA 456; (2005) 65 NSWLR 245; Mandla v Dowell Lee [1983] 2 AC 548; Miller v Wertheim [2002] FCAFC 156; OV & OW v Members of the Board of the Wesley Mission Council [2010] NSWCA 155; (2010) 270 ALR 542; State Transit Authority (New South Wales) v Chemler [2007] NSWCA 249; Vice-Chancellor Macquarie University v FM [2005] NSWCA 192
• Texts Cited: New South Wales Legislative Council, Parliamentary Debates (Hansard) 11 June 2002 at 2960; New South Wales Department of Health, Privacy Internal Review Guidelines NSW Health (24 May 2006); New South Wales Department of Health, Privacy Manual (Version 2), (3 June 2005); New South Wales Department of Premier and Cabinet, NSW Ombudsman, The NSW FOI Manual, (August 2007)
• Category: Principal judgment
• Parties: Tareq Altaranesi (Appellant); Administrative Decisions Tribunal (Appeal Panel) (First Respondent); Sydney Local Health District (Second Respondent)
• Representation: Counsel: Self-represented (Appellant); No Appearance (First Respondent); A Britt (Second Respondent); Solicitors: Self-represented (Appellant); Crown Solicitor (First Respondent); GILD Insurance Litigation Pty Ltd (Second Respondent)
• File Number(s): CA 2010/299162

Decision under appeal

• Citation: 'KT' v Sydney South West Area Health Service (GD); [2010] NSWADTAP 60
• Date of Decision: 2010-09-02 00:00:00
• Before: Judge K P O'Connor, N Isenberg, Judicial Member, J Le Breton, Non-judicial Member
• File Number(s): AP Nos. 109025, 109028, 109029

Judgment

1 CAMPBELL JA: I agree with Meagher JA.

2 MEAGHER JA: This is an appeal from three decisions of the Appeal Panel of the Administrative Decisions Tribunal (the Appeal Panel ) brought under s 119(1) of the Administrative Decisions Tribunal Act 1997 ( ADT Act ). It is limited to questions of law which either must constitute the decision appealed from or be material to that decision: see Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [14]-[16]; B&L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; (2008) 74 NSWLR 481 at [47], [120], [121], [125].

3 At each stage of the proceedings to which this appeal relates, and in the appeal to this Court, the appellant has represented himself. Before this Court he was also assisted by an interpreter.

Overview

4 The appellant was employed by the second respondent as a hospital assistant at Royal Prince Alfred Hospital ( RPAH ). He made workers compensation claims against the second respondent for injuries to his back and hip and for work related stress said to have been sustained in the course of his employment during 2007 and 2008. His employment with the second respondent was terminated with effect on 19 January 2009.

5 The second respondent is a "public sector agency" as defined in s 3(1) of the Privacy and Personal Information Protection Act 1998 ( PPIP Act ) and s 4(1) of the Health Records Information Privacy Act 2002 ( HRIP Act ) and a "health service provider" as defined in s 4(1) of the HRIP Act.

6 The PPIP Act and the HRIP Act contain rules or principles directed to the collection, use and disclosure of information about individuals. The second respondent was required to comply with the twelve "information protection principles" in the PPIP Act and with the fifteen "Health Privacy Principles" in the HRIP Act: ss 8 to 19, 20, 21 of the PPIP Act and s 11 of, and cll 1 to 15 of Schedule 1 to, the HRIP Act.

7 Part 5 of the PPIP Act provides for the review of conduct by the relevant public sector agency that contravenes or is alleged to contravene an information protection principle: s 52(1), (2). That Part also applies to contraventions or alleged contraventions of Health Privacy Principles by a health service provider: s 21 of the HRIP Act. In either case, a person "aggrieved" by such conduct is entitled to seek an internal review by the agency concerned: s 53.

8 The Administrative Decisions Tribunal ( Tribunal ) has jurisdiction to review conduct which has been the subject of an application for an internal review if the person making the allegations is not satisfied with the findings of the internal review or the action taken by the public sector agency or health service provider: s 55 of the PPIP Act. The conduct of that agency is a "reviewable decision" for the purposes of the ADT Act and the review by the Tribunal is a review of the conduct complained of on the merits. Having reviewed the agency's conduct, the Tribunal must decide what the "correct and preferable decision" is: ss 8, 38 and 63 of the ADT Act.

9 An order or decision of the Tribunal in exercise of that jurisdiction is an "appealable decision" which may be appealed to the Appeal Panel: s 56 of the PPIP Act and s 112 of the ADT Act. That appeal is limited to "any question of law" unless the Appeal Panel, by a grant of leave, extends the scope of the appeal to a review of the merits of the Tribunal's decision: ss 8, 38, 112(1), 113(1), (2) of the ADT Act.

10 The appellant made two applications for an internal review of conduct alleged to involve contraventions by the second respondent of information protection principles and Health Privacy Principles. The first related to the disclosure of personal information concerning the appellant and his wife and daughter. The second related to delay in responding to requests for access to the appellant's personnel file, staff health records and other information. In each case, the conduct was reviewed by Ms Charlotte Roberts, an officer of the second respondent. In each case the conduct was then the subject of a review by the Tribunal constituted by Judicial Member Molony and, in each case, he concluded that there had been no contravention of any relevant principle. Following the review of the conduct relating to the disclosure of personal information, the Tribunal made an order, under s 88(1A) of the ADT Act, that the appellant pay a significant part of the second respondent's costs of that review.

11 Those three decisions of the Tribunal (respectively, the decisions not to take any action following the two reviews and the decision to award costs) were the subject of appeal Nos 109025, 109028, 109029 to the Appeal Panel. Those appeals were heard together and on 2 September 2010 the Appeal Panel delivered a judgment in which it dismissed each appeal: KT v Sydney South West Area Health Service (GD) [2010] NSWADTAP 60. The appeal to this Court is against the decisions of the Appeal Panel to dismiss those three appeals.

The appeal to this Court

12 The grounds of appeal to this Court are stated in very general terms. Whilst a number of those grounds describe matters which could involve a question of law, none do so by reference to any particular aspect or part of those decisions or indicate how any questions of law are said to have been material to the decisions to dismiss each appeal. Those grounds are as follows:

"1 Finding of fact is not supported by evidence.

2 Ignoring relevant materials and relying on irrelevant material.

3 Misinterpreting the words in statutory provisions.

4 Making an erroneous finding, and identify wrong issues.

5 There is a fraud by the Respondent, and Appeal Panel did not give the appellant an opportunity to disclose it.

6 The Appeal Panel did not give effect to Government Policies.

7 Breaching of principle of open justice.

8 The Appeal Panel discharged from judicial power to Administrative power, in absent of material or information before the Appeal Panel.

9 There is a fraud."

13 The written and oral submissions of the appellant address a number of matters which are said to have involved errors on the part of the Appeal Panel when dealing with the appeals before it. Some of those matters are not within the stated grounds of appeal. Some do not obviously involve questions of law. I have endeavoured to identify from those submissions, and to address below, each of the matters which the appellant relies upon.

14 I will deal first with the decision of the Appeal Panel in appeal No 109025 (disclosure of personal information), then with its decision in appeal No 109028 (delay) and finally with its decision in appeal No 109029 (costs).

Appeal against the decision of the Appeal Panel in appeal No 109025

15 The Appeal Panel declined to give the appellant leave to extend the appeal to a review of the merits of the Tribunal's decision: [2010] NSWADTAP 60 at [29]-[32]. It also ordered that the appeal be dismissed on the basis that there was no error in the way the Tribunal had conducted its review of the conduct of the second respondent: [2010] NSWADTAP 60 at [32]. To understand and deal with the arguments put by the appellant to this Court it is necessary first to summarise his application for internal review and the way in which the conduct the subject of that application was dealt with by the Tribunal.

The complaint relating to disclosure of information

16 In a complaint received by the second respondent in early September 2008, the appellant applied for a review of conduct alleged to involve the disclosure of personal and health information concerning him, his wife and daughter. None of the conduct complained of involved the collection of that information.

17 The application was described as made by the appellant for himself and "on behalf of" his wife, Fawzia Ismail. The handwritten description of the conduct complained of was:

"- disclose my race, job, health of my wife and disease of my daughter and giving them to other agencies in formal papers

- obtaining medical reports of my wife without any consent."

That conduct was said to have occurred "several time within 2007, 2008 until now".

The internal review

18 The internal review was undertaken by Ms Roberts. The appellant was notified of the findings of that review by letter dated 4 December 2008. The report of that review addresses three alleged breaches of Health Privacy Principles. The first was the sending of a letter dated 24 July 2007 which contained information concerning the appellant. The second was a disclosure in January 2008 of health information concerning the appellant, his wife and daughter. The third was an unparticularised communication between the Assistant Director of Human Resources, RPAH, and the Manager, Patient Information Services, RPAH, which was said to have involved the disclosure of medical reports of the appellant's wife.

19 The internal review concluded in each case that the information which was the subject of the application was "health information" so that the relevant information principle was Health Privacy Principle 11: see s 4A of the PPIP Act. The review found no breach of that principle in relation to any of the three allegations considered.

20 Health Privacy Principle 11 is:

"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:

(a) Consent

the individual to whom the information relates has consented to the disclosure of the information for that secondary purpose, or

(b) Direct relation

the secondary purpose is directly related to the primary purpose and the individual would reasonably expect the organisation to disclose the information for the secondary purpose, or

Note . For example, if information is collected in order to provide a health service to the individual, the disclosure of the information to provide a further health service to the individual is a secondary purpose directly related to the primary purpose.

..."

The decision of the Tribunal of 12 February 2010

Overview

21 On 15 December 2008 the appellant applied to the Tribunal for a review of the conduct which was the subject of his September 2008 complaint. On 12 February 2010 Judicial Member Molony delivered an ex tempore decision, concluding that there had not been any contravention of any relevant information principle.

22 In his review, Judicial Member Molony dealt with conduct which was the subject of two of the three alleged breaches dealt with by the internal review. The first was that Dr Nossar's letter dated 24 July 2007 had disclosed the appellant's "race, his wife's health, the fact that he had an invalid daughter, his qualifications, and the year he immigrated to Australia". The second was that Mr Harding, by answers given in January 2008 to an insurance investigator in relation to a workers compensation claim made by the appellant, had disclosed information about the appellant's wife and daughter. Judicial Member Molony did not deal with a third unparticularised allegation said to involve disclosure of medical reports of the appellant's wife. He dealt with the other alleged conduct as follows.

Dr Nossar's letter dated 24 July 2007

23 The medical practitioner who usually treated the appellant was a Dr Rafat Lawendy. On 24 July 2007 Dr Nossar wrote a letter addressed to a Dr Bawendry requesting that he "provide follow up for this 51 year old cleaner and patient of yours who presented today with recurrence of right low back and lateral hip pain". That letter wrongly spelt Dr Lawendy's name but was correctly addressed to his place of practice. The appellant complained that the letter disclosed personal information or health information about him without his consent. His evidence was that he had not consulted Dr Nossar in July 2007 or told him that he had back pain. Specifically, he denied discussing with Dr Nossar that Dr Nossar could write to his general practitioner and denied consenting to that occurring.

24 Dr Nossar gave evidence before the Tribunal that the appellant had consulted him on a series of occasions. He said that on 23 July 2007 the appellant consulted him about ongoing back pain and that they had discussed the need for further "follow-up and treatment" for his back and hip from his usual treating doctor. Dr Nossar said that the appellant agreed to this and to him writing a letter to his "GP" (T90). Dr Nossar produced his handwritten case history notes dated 23 July 2007 which included the words "write GP, given verbal consent" (T86). This was consistent with his subsequent conduct in writing the letter of 24 July 2007. Judicial Member Molony accepted Dr Nossar's evidence as correct.

25 In his letter, Dr Nossar described the appellant as a "university-trained accountant from Egypt". The appellant maintained that this was information as to his "race". The Judicial Member described the information in the letter in the following terms:

"Relating to [appellant's] background and family circumstances which information Dr Nossar had obtained from [the appellant] over a series of consultations with him with respect to his health. This was information in relation to his nationality, not as [the appellant] would have it his race, his education and migration to Australia, work and family circumstances."

He considered that information to be "personal information" collected in providing a health service and therefore "health information" within s 6(b) of the HRIP Act. It was not "personal information" for the purposes of the PPIP Act: s 4A. Accordingly, the applicable principle was Health Privacy Principle 11. If that had been information as to the appellant's "ethnic or racial origin", as the appellant argued, and also not "health information" within s 6(b) it would have been "personal information" to which the information protection principle in s 19 of the PPIP Act applied. That principle contains special restrictions on the disclosure of particular kinds of information including as to "ethnic or racial origin".

26 Judicial Member Molony considered that there had not been a breach of Health Privacy Principle 11 for two reasons. First, the appellant had consented to Dr Nossar writing to Dr Lawendy about his "condition and further treatment". The information concerning the appellant which was disclosed included biographical information relating to the appellant's origins and social, family and work circumstances. Dr Nossar said, and the Judicial Member accepted, that such information was frequently exchanged between treating doctors when communicating about a mutual patient's health and welfare so that each is aware of all relevant factors affecting the assessment, care and future treatment of the patient. The second reason was that the disclosure to Dr Lawendy of information obtained by Dr Nossar in assessing and treating the appellant was for the purpose of enabling Dr Lawendy to continue the treatment and care of the appellant's back and hip pain. Thus, the disclosure was for a secondary purpose directly related to the primary purpose for which the information was collected and the patient would reasonably expect RPAH to disclose such information for that secondary purpose. It followed that the disclosure was within the exception in cl 1(b) of the relevant Principle.

Mr Harding's interview by insurance investigator on 21 January 2008

27 In January 2008 Mr Harding was the Environmental Services Manager at RPAH. On 21 January he was interviewed by an insurance investigator retained on behalf of the second respondent's workers compensation insurer. A written note of that interview in the form of questions and answers, was in evidence before the Tribunal. It includes the following question and answer:

"10. Are you aware of any issues outside of work that may be impacting on the injured worker?

I understand from his sister that he has a medical problem (not known). He verbally told me he had a ... condition. I am aware that he has an ... child."

28 The appellant complained that this answer involved a disclosure of "personal" information concerning him and his daughter contrary to the provisions of the PPIP Act or HRIP Act. Mr Harding gave evidence before the Tribunal that he had obtained the information about the appellant's daughter from the appellant during a conversation and that he had obtained the information about the appellant's medical condition in a conversation with the appellant and also in a telephone conversation with a woman who identified herself to Mr Harding as the appellant's sister. Mr Harding said that he did not make any note of any of this information or record it in any file or other recordkeeping system of the second respondent. The Tribunal accepted this evidence and concluded that the information that Mr Harding had disclosed to the insurance investigator was "knowledge that he retained in his own mind".

29 Judicial Member Molony considered that because the information which was disclosed to the insurance investigator was only in Mr Harding's mind and not recorded in any way it was not "personal information" within the PPIP Act. For that reason he concluded that neither the PPIP Act nor the HRIP Act could apply to it or to its disclosure. As will appear from the discussion below, the conclusion that this information was not "personal information" was wrong. However, the conclusion that it was not information "held" by the second respondent was correct: see Vice-Chancellor Macquarie University v FM [2005] NSWCA 192. Therefore, its use or disclosure could not involve a contravention of any relevant information protection principle or Health Privacy Principle because those principles are directed only to use or disclosure of "personal information" or "health information" by a body or organisation that "holds" such information.

Communication disclosing medical reports of appellant's wife

30 Judicial Member Molony recorded that during the hearing before him the appellant had sought to raise matters not related to the conduct "considered" by the internal review. He gave three examples of such matters:

"first, [the appellant's] wish to agitate what he saw as a breech [sic] of his daughter's privacy by Dr Nossar writing a letter referring to her. The letter was written before the period considered by the internal review and therefore was not considered by the internal review.

Secondly, [the appellant] attempts to agitate what he saw as breaches with respect to his wife's privacy. [The appellant] did not provide the internal review with any authority to make a complaint or act on his wife's behalf and as a result conduct relating to her was not considered on the internal review and is outside the scope of the review by this Tribunal. Additionally, I note that his wife has her own proceedings before [the] Tribunal.

Thirdly, [the appellant] repeatedly wished to agitate what he believes were delays in acknowledging receipt of his application for internal review and in considering it. ..."

The first example is a reference to a letter from Dr Nossar to a Dr Michael Jennings dated 17 May 2006. That letter contained information concerning the appellant's wife and daughter. The second refers to conduct with respect to the appellant's "wife's privacy" and would include any alleged conduct relating to the disclosure of his wife's medical reports without her consent. That matter was considered by Ms Roberts in her internal review. The final example does not describe any conduct involving the disclosure of information. It concerned alleged delays in the conduct of the internal review.

31 The Tribunal was required, in accordance with s 55(1) of the PPIP Act, to review the conduct which was the subject of the application for the internal review under s 53(1). Therefore, in addressing whether any conduct was "outside the scope" of the Tribunal's review, it was not sufficient to consider whether conduct had or had not been "considered" by the internal review. As will be seen from the discussion below, I have concluded that the Tribunal did not err in its conclusion that it was not required to review that alleged conduct concerning disclosure of the appellant's wife's information.

Appellant's submissions as to matters said to involve error on the part of the Appeal Panel on a question of law

32 It is convenient to address these matters in the order in which they are dealt with in the appellant's written submissions and then to address any other matters raised by the appellant. Most concern alleged errors on the part of the Tribunal which the Appeal Panel did not identify as errors.

Denial of procedural fairness before the Tribunal in relation to tender of case history notes

33 The appellant says that he was denied procedural fairness before the Tribunal because he was not given an adequate opportunity to deal with and respond to the tender of Dr Nossar's case history notes. In response, the second respondent says this matter is not within the grounds of appeal and for that reason cannot be raised. It also submits that there was no error on the part of the Appeal Panel in concluding that there was no substance in the appellant's procedural fairness objections: [2010] NSWADTAP 60 at [21], [30].

34 The Tribunal is not bound by the rules of evidence and "subject to the rules of natural justice" may inform itself on any matter "in such manner as it thinks fit". It is also bound to take such measures as are reasonably practicable "to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings": s 73(2) and s 73(4)(c) of the ADT Act. Whilst these provisions give content to the requirement to accord procedural fairness, they do not permit the Tribunal to proceed without ensuring that each party had notice of, and a reasonable opportunity to address, the case against it: State Transit Authority (New South Wales) v Chemler [2007] NSWCA 249 at [65].

35 Before the Tribunal the appellant denied that he had seen Dr Nossar in July 2007. When Dr Nossar was called to give oral evidence he produced the case history notes and explained what they recorded (T86, 90). The appellant objected to the notes being received in evidence because he had not seen them before. They were admitted into evidence and the appellant cross-examined Dr Nossar on them and suggested that he had not given consent to his writing to Dr Lawendy. Dr Nossar rejected that suggestion (T86). In his oral submissions to the Tribunal on 22 January 2010, the appellant submitted that the notes were "fake" (T105).

36 The transcript of the proceedings before the Tribunal indicates that although the appellant objected to the tender because he had not seen the document before (T83), he did not request time or an opportunity to obtain or lead further evidence rebutting that evidence or otherwise addressing the issue as to whether he had seen Dr Nossar on 23 or 24 July 2007. Nor was it obvious that in the circumstances there would be any such evidence which he might not already have sought to produce if it was available. The question whether he had seen Dr Nossar and consented to him writing to Dr Lawendy was the issue at the heart of the appellant's complaint. He had adequate opportunity prior to the hearing in the Tribunal to address that issue. For these reasons there was no error by the Appeal Panel in concluding that in this respect there was no denial of procedural fairness by the Tribunal.

Denial of procedural fairness before the Appeal Panel

37 The appellant also says that he was denied procedural fairness before the Appeal Panel because the hearing before it took three hours and had regard to material which he had not seen. The second respondent says this matter is not within the grounds of appeal and submits that there was no such denial.

38 There is no substance in either of the appellant's submissions. As to the first, the transcript of proceedings before the Appeal Panel does not suggest that the appellant was not given a reasonable opportunity to make orally the arguments which he sought to put. The Panel also received lengthy written submissions from the appellant. As to the second, the only material said not to have been disclosed to the appellant is a letter from the Acting Director, Area Human Resources, of the second respondent to the Tribunal dated 5 August 2009. It attached a "position paper" of the second respondent for use in a case conference before the Tribunal. The letter was not relevant to any issues before the Appeal Panel and was not referred to by it in its reasons.

Error in relation to Appeal Panel's decision not to extend appeal to a review of merits

39 The appellant sought to extend the appeal before the Appeal Panel to a review of the merits and to tender a number of documents said to be relevant to the question whether Dr Nossar saw him on 23 or 24 July 2007. Those documents included four "Injury Management Plans" prepared by Employers Mutual Limited, a workers compensation insurer. The other documents sought to be tendered were pro forma medical certificate forms, WorkCover and Medical Council of New South Wales guidelines in respect of the completion of medical certificates and WorkCover's Code of Conduct for approved service providers.

40 The Appeal Panel gave reasons for its decision not to permit a review on the merits. It concluded that it was not desirable to "reopen" the dispute by permitting such a review: [2010] NSWADTAP 60 at [28]-[32]. It considered the additional material which the appellant sought to tender and was also satisfied that there was no substance to the submission as to any denial of procedural fairness. Contrary to the appellant's submission, it did not proceed on the basis that he had first to establish an actual or arguable question of law or error of law to enliven the exercise of the discretion to permit a merits based review: cf Lloyd v Veterinary Surgeon's Investigating Committee [2005] NSWCA 456; (2005) 65 NSWLR 245.

41 None of the additional documents referred to, with the exception of the four injury management plans, addressed the issue as to whether the appellant had seen Dr Nossar in July and given consent to the writing of the letter to Dr Lawendy. Each of those plans stated in a part of the form recording "Background Information" that the appellant was "reviewed by Dr Lawendy on 23/07/07" and that Dr Lawendy had diagnosed the appellant with "Right low back pain - recurrence". Those plans were not records of Dr Nossar or Dr Lawendy. They were records of an insurer reciting facts of which it had been informed. The appellant relied on the reference in each to Dr Lawendy having seen him on 23 July. However, in the light of the content of the letter of 24 July 2007 and the absence of any suggestion by the appellant that it was Dr Lawendy who had first diagnosed his back and hip pain, the reference to Dr Lawendy having diagnosed his further back injury on 23 July 2007 appears to be incorrect. The Appeal Panel is not shown to have erred in exercising its discretion not to grant leave to extend the appeal to a review of the merits.

Failure of Appeal Panel to consider whether reasonable apprehension of bias in relation to Tribunal

42 The appellant says that the Appeal Panel did not address the question of actual bias (as distinct from apprehension of bias) on the part of the Tribunal. That is correct. The Appeal Panel records that this argument was not pressed before it and was not considered by it: [2010] NSWADTAP 60 at [44].

43 The relevant facts appear to be as follows. On 12 August 2009, the appellant wrote to "The Hon. Magistrate" at the Tribunal requesting that person to disqualify him or herself for apprehended bias. It would seem that the letter was intended for Judicial Member Higgins. Subsequently, Judicial Member Higgins declined to hear each of the applications for review made by the appellant. There was no suggestion in that letter of any apprehension of bias on the part of Judicial Member Molony. In the result, there was no reason for the Appeal Panel to consider the decision which Judicial Member Higgins took to disqualify herself or any question of bias on the part of Judicial Member Molony. There was no error in the way the Appeal Panel dealt with this subject.

The Appeal Panel determined issues which were not before it

44 The appellant says that in the course of its judgment the Appeal Panel made observations about factual matters which were not in issue before it and that in doing so it somehow exceeded its jurisdiction. Those matters include its observation that the second respondent took "disciplinary action against" the appellant: [2010] NSWADTAP 60 at [2]. Other similar observations as to background facts are referred to. When addressing the three appeals, it was necessary and appropriate for the Appeal Panel to describe the factual context in which they arose. It did not exceed its jurisdiction in doing so. Furthermore, none of the observations referred to by the appellant was material to the Appeal Panel's ultimate decision to dismiss the appeal.

The Tribunal and Appeal Panel did not give effect to "Government Guidelines or policies"

45 This argument appears to address ground of appeal 5. Section 64(1) of the ADT Act requires the Tribunal, in determining an application for a review of a "reviewable decision", to give effect to "any relevant Government policy" in force at the time the decision was made. "Government policy" is defined as a policy adopted by the Cabinet or the Premier or any other Minister that is to be applied in the exercise of discretionary powers by "administrators": s 64(5) of the ADT Act.

46 The appellant argues that guidelines made by the WorkCover Authority of New South Wales under s 376(1) of the Workplace Injury Management and Workers Compensation Act 1998 and guidelines issued by the Medical Council of New South Wales, for the completion of claim forms or medical certificates, are such policies. He also argues that "Privacy Internal Review Guidelines" and the "Privacy Manual" issued by the New South Wales Department of Health constitute such policies.

47 None of those policy guidelines or directives answers the description of a "Government policy". None is or contains a policy which "is to be applied in the exercise of discretionary powers" by the second respondent when conducting an internal review under s 52 of the PPIP Act. Nor was there any evidence before the Tribunal that any of these guidelines or directives were adopted as such by the Cabinet or Premier or any other Minister. The only document referred to by the appellant which addresses the conduct by the second respondent of internal reviews under Part 5 of the PPIP Act is the "Privacy Internal Review Guidelines". That document announces in terms that its purpose is to provide detailed guidelines to the various NSW Health agencies concerning their obligations under legislation including the PPIP and HRIP Acts. Whilst the document explains the requirements of that legislation in relation to the undertaking of an internal review, it does not purport to record policy adopted by the Cabinet or the Premier or any Minister and contains no statements as to how any discretion given by s 53(7) of the PPIP Act should be exercised on the conclusion of such a review. This argument does not identify any error on the part of the Appeal Panel.

The Tribunal did not address conduct involving disclosure of information concerning the appellant's wife's medical condition

48 The appellant argued before the Appeal Panel that the Tribunal had erred in not addressing alleged conduct involving disclosure of information about his wife's health. That disclosure was said to have occurred on two separate occasions. The first was in May 2006 by a letter from Dr Nossar to a Dr Michael Jennings. The second was communication of her medical reports between officers of the second respondent at a time not specified.

49 As to the first, the Appeal Panel held that the Tribunal had not erred in not addressing this letter because it was not part of his review application: [2010] NSWADTAP 60 at [17]. The question whether that conclusion involved error is dealt with separately below.

50 As to the second, the Appeal Panel held that the Tribunal had not erred in not considering that alleged conduct because that aspect of the complaint was made on behalf of the appellant's wife and she had not authorised or sought the review of it: [2010] NSWADTAP 60 at [6], [7], [9], [19]. The Appeal Panel concluded that the appellant's application in this respect was not made for himself on the basis that he was "aggrieved" by the disclosure of her information. That conclusion did not involve any error on the part of the appeal Panel.

51 The application for review was expressed also to be made "on behalf of" the appellant's wife, Fawzia Ismail. In response, Ms Roberts, by letter dated 30 September 2008, sought the appellant's wife's authority to proceed with the investigation about the alleged disclosure of her personal health information. The appellant responded to that request by email dated 12 October 2008. That email did not include and was not accompanied by any authority from his wife. In her internal review, Ms Roberts noted that she had not received any authority from the appellant's wife to investigate complaints concerning her information. Nevertheless, she proceeded to consider whether there had been any wrongful disclosure of information concerning her to a Mr Leahy or between two other officers of the second respondent as suggested in the appellant's email of 12 October 2008. On the basis of inquiries made to Mr Leahy and those officers, she concluded that there had been no breach of any privacy principle. As is noted above, Judicial Member Molony did not review the conduct in relation to the alleged disclosures of the appellant's wife's personal health information.

52 It may be accepted that the expression "aggrieved" in s 53(1) of the PPIP Act should be construed broadly and that it is sufficient for a person to have standing to make a complaint that any disclosure of information has prejudicially affected that person's interests (see Koowarta v Bjelke-Petersen [1952] HCA 27; (1982) 153 CLR 168 at 184-185). However, the appellant's complaint in relation to this information was expressed to be made "on behalf of" his wife. At no stage did the appellant suggest, when making and particularising the application for internal review, that it was made because the conduct consisting of the disclosure of information as to his wife's medical condition had had any prejudicial effect on him or his dealings with the second respondent or any of his worker's compensation claims.

53 Accordingly, the Tribunal was correct to conclude that the conduct relating to the appellant's wife's personal health information was outside the scope of the review which the Tribunal was required to undertake.

The Tribunal erred in not addressing conduct involving the disclosure in May 2006 of health information about the appellant's wife and daughter

54 The conduct which the appellant sought to have reviewed by the Tribunal included a letter dated 17 May 2006 from Dr Nossar to Dr Jennings who was a Psychiatrist at RPAH. That letter concerned the appellant's medical condition and reference was also made to health information about his wife and elder daughter. The Tribunal did not address the conduct in sending that letter because it was written "before the period considered by the internal review and therefore not considered by the internal review". Rejecting the appellant's argument, the Appeal Panel was satisfied that this involved no error on the part of the Tribunal because the letter did not form part of the appellant's internal review application: [2010] NSWADTAP 60 at [17]. That conclusion was correct and involved no error. The appellant's application dated 11 August 2008 stated that the conduct which he sought to have reviewed had occurred "several times within 2007, 2008 until now". The letter to Dr Jennings was written before that period.

The Tribunal erred in finding that the appellant consented to Dr Nossar writing to Dr Lawendy

55 The appellant argued before the Appeal Panel that the Tribunal's finding that he had consented to Dr Nossar writing to Dr Lawendy was wrong. That finding was relevant to whether there had been a breach of Health Privacy Principle 11. The Appeal Panel dealt with that argument on the basis that because it had not given leave to extend the appeal to the merits it was only concerned with errors of law in the fact finding process. It concluded that there was evidence to support the Tribunal's finding and accordingly, no relevant error of law: [2010] NSWADTAP 60 at [21], [23], [31], [32].

56 The Appeal Panel did not err in this conclusion. Dr Nossar's evidence was that he obtained the appellant's consent to write to his general practitioner. Dr Nossar produced his case history notes dated 23 July 2007 and in his oral evidence confirmed that they recorded that he had asked and been given "verbal consent to write to the doctor". In his submissions to this Court the appellant points out that Judicial Member Molony found that the appellant "consulted Dr Nossar on 24 July 2007 about his back condition". The appellant says that this is inconsistent with the notes which record that Dr Nossar saw the appellant on 23 July 2007. The appellant also points out that the first sentence of the letter of 24 July 2007 refers to the appellant "who presented today".

57 Each of these observations is correct and the Judicial Member's finding as to the exact date of the consultation might be wrong. A possible explanation for these discrepancies in the documentary evidence could be that the letter was drafted or dictated on the date of the consultation, which is the subject of the case history notes, but not typed until the next day.

58 These discrepancies do not, however, assist the appellant's argument. The issue before Judicial Member Molony was whether Dr Nossar saw the appellant on or about 24 July 2007 and consented to him writing to his general practitioner about his condition and further treatment: [2010] NSWADTAP 60 at [11]. The Appeal Panel correctly concluded that there was evidence which supported the finding that Dr Nossar had the appellant's consent to write to Dr Lawendy on 24 July 2007: [2010] NSWADTAP 60 at [21], [23].

The Tribunal erred in concluding that there was no breach of Health Privacy Principle 11

59 The appellant argued before the Tribunal that there was a contravention of this Principle. The Tribunal held that there was no contravention for two reasons. The first was that the appellant had consented to the disclosure of the information so that the exception in cl 1(a) of the Principle applied. The second was that the information was disclosed for a "secondary purpose" which was directly related to the purpose for which the information was collected so that the exception in cl 1(b) of the Principle also applied. The Appeal Panel, in my view correctly, held that there was no error in each of these conclusions of the Tribunal: [2010] NSWADTAP 60 at [14], [31], [32].

60 As to the first, the Tribunal made findings that the appellant consented to Dr Nossar writing to Dr Lawendy about the appellant's "condition and further treatment" and that for the purpose of doing so it was reasonably necessary for Dr Nossar to disclose information as to the patient's origins and "social, family and work circumstances" so as to enable another treating doctor properly to diagnose the patient's condition and administer further treatment. Thus, the appellant consented to the disclosure of information concerning or with respect to his "condition and further treatment" without that information being more specifically described or identified. The appellant argued that the information disclosed did not answer this description. I do not agree. It was within that broad description because, for the reason given by Dr Nossar, it concerned the proper diagnosis of his condition and its ongoing or further treatment.

61 That makes it unnecessary to consider whether, if there was not an express consent in general terms, there was in any event an implied consent to such disclosure and, if so, whether consent in cl 1(a) of Health Privacy Principle 11 is satisfied by implied consent. Had it been necessary to decide this question I would have concluded that "consent" includes implied consent. The ordinary meaning of "consent" is to agree or give assent to or to acquiesce in, and is not limited to express as distinct from implied agreement, assent or acquiescence. Neither the PPIP Act nor the HRIP Act contains a definition of "consent". In this respect they differ from the Privacy Act 1988 (Cth) which in s 6 defines "consent" to mean "express consent or implied consent". Both the Information Privacy Principles in s 14 of that Act (see Principle 10) and the National Privacy Principles which were introduced into that Act in 2000 (see Schedule 3 and National Privacy Principle 2.1(a)) contain exceptions to permit the use or disclosure of information if the individual has consented to that use or disclosure. As was noted by Campbell J (as his Honour then was) in Kadian v Richards [2004] NSWSC 382; (2004) 61 NSWLR 222 at [63], Health Privacy Principle 11 in the HRIP Act is almost identical in its effect to National Privacy Principle 2.1 except that the former relates only to health information.

62 The introduction of the HRIP Act in 2002 imposed privacy obligations on public sector and some private sector health service providers in substantially the same terms as those in the Privacy Act 1988 which continued to apply to "small business operators" in the private sector. It is unlikely that the New South Wales Parliament intended those privacy obligations to operate differently with respect to use or disclosure by consent. That this was not intended is confirmed by the second reading speech for the bill in which the Treasurer said that "consistency" in the area of privacy legislation was highly desirable and that the bill had been developed "to ensure general consistency with the Federal Privacy Act": New South Wales Legislative Council, Parliamentary Debates (Hansard) 11 June 2002 at 2960.

63 As to the second, the exception requires that two tests be satisfied. There was a direct relationship between the purpose for which the information was collected and the purpose for which the information was disclosed because each was to enable treatment of the same condition and the disclosure was to enable that treatment by another medical practitioner. In such circumstances where the secondary purpose was to enable further or follow up treatment, a patient could reasonably expect information to have been disclosed for the reasons given by Dr Nossar and accepted by the Tribunal.

The Tribunal erred in concluding that there was no disclosure of information as to "ethnic or racial origin"

64 One of the allegations made by the appellant to the Tribunal was that the second respondent had disclosed information as to his "race". Judicial Member Molony concluded that the relevant information was as to his "nationality" and not his race. The Appeal Panel does not specifically deal with the question whether the disclosure was as to the appellant's "race": [2010] NSWADTAP 60 at [8], [10], [23]. Before this Court he argued that it erred in not doing so.

65 The second respondent submits that the Appeal Panel made no material error on any question of law in relation to this matter. First, it says that the Tribunal was correct to conclude that the statement that the appellant was "from Egypt" described the country from which the appellant had migrated to Australia but was not a statement which disclosed his "ethnic or racial origin". I agree. Those words have been held to describe an historically determined social identity which distinguishes persons having a sufficient combination of "shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what in biological terms is a common racial stock". That combination is such as to give those persons "an historically determined social identity in their own eyes and in the eyes of those outside the group". Persons having the same "ethnic or racial origin" have a "distinct social identity based not simply on group cohesion and solidarity but also on their belief as to their historical antecedents": per Richardson J in King-Ansell v Police [1979] 2 NZLR 531 at 543; applied in Mandla v Dowell Lee [1983] 2 AC 548 at 564; Miller v Wertheim [2002] FCAFC 156 at [14]; and Jones v Scully [2002] FCA 1080; (2002) 120 FLR 243 at [111].

66 Secondly, it says that in any event the information protection principle in s 19 of the PPIP Act did not apply in this case because the "personal" information that the appellant was "from Egypt" was collected by the second respondent in providing a health service and was "health information" within s 6(b) of the HRIP Act and therefore not "personal information" for the purposes of the PPIP Act. That submission is correct: see s 4A of the PPIP Act. For these reasons there was no material error on the part of the Appeal Panel in not addressing this matter.

The Tribunal erred in finding that Mr Harding made no record of information

67 The appellant argued before the Appeal Panel that there was no evidence to support this finding of the Tribunal. That argument was correctly rejected. As the summary of Judicial Member Molony's conclusions set out above shows, Mr Harding gave evidence that he recalled receiving the relevant information and did not make any note of it or otherwise record it. The Tribunal accepted that evidence.

The Tribunal erred in holding that the information known to Mr Harding was not subject to Health Privacy Principle 11

68 The Appeal Panel agreed in the Tribunal's conclusion that this Principle did not apply to the information known to Mr Harding. The appellant argues that the Appeal Panel erred in concluding that the Tribunal had correctly applied Vice-Chancellor Macquarie v FM [2005] NSWCA 192 in which this Court said that the expression "holds personal information", as it appears in the information protection principles in ss 12 to 19 of the PPIP Act, does not extend to information held in the mind of an employee. Even if that submission were accepted, it would not identify any material error on the part of the Appeal Panel. The Tribunal correctly concluded that the information was not personal information to which the Health Privacy Principles governing use or disclosure could apply. It did so, however, for the wrong reason that the information was not "personal information" rather than for the correct reason that it was not "held" in the relevant sense. The Appeal Panel did not identify this error in the Tribunal's reasoning process: cf [2010] NSWADTAP 60 at [16], [26]. Had it done so it would still have held that there was no error in the Tribunal's conclusion.

Failure of the Tribunal to address alleged contraventions of privacy principles in relation to collection of information

69 The appellant argued before the Tribunal that there were breaches by the second respondent of several of the privacy principles when collecting information concerning himself, his daughter and his wife: see the information protection principles in ss 8, 9, 10 and 11 of the PPIP Act and the Health Privacy Principles in cll 1, 2, 3, 4, 10 and 11 of Schedule 1 to the HRIP Act. The Tribunal concluded that these allegations were not part of the conduct which was the subject of the application for the internal review and accordingly that they were not within the scope of its review. The Appeal Panel did not deal with that conclusion of the Tribunal: cf [2010] NSWADTAP 60 at [26].

70 The Tribunal was correct to conclude that the application under s 53 was expressly limited to the disclosure of information. For that reason there was no error on the part of the Tribunal in not addressing conduct in collecting information and no material error on the part of the Appeal Panel in not dealing with that conclusion of the Tribunal.

The allegation that there was fraud

71 The appellant's written and oral argument does not clearly describe what is said to have been the fraud on the part of the second respondent. To the extent that this is intended to be a reference to the second respondent's tender in evidence of the case history notes (which the appellant submitted were "fake") and its maintaining that Dr Nossar had obtained the appellant's consent to disclosure, the appellant has not demonstrated any error on the part of the Appeal Panel in dealing with those matters.

Conclusion in appeal against decision in appeal No. 109025

72 The appellant has not identified any error of the Appeal Panel in respect of a question of law which was material to its decisions not to extend the appeal to a review of the merits and to dismiss the appeal. The appeal to this Court from those decisions should be dismissed.

Appeal against the decision of the Appeal Panel in appeal No. 109028

73 The Appeal Panel dismissed this appeal from the Tribunal's decision on the basis that the appellant had not identified any error of law in the way the Tribunal conducted its review of the earlier internal review concerning delay in the provision of access to information: [2010] NSWADTAP 60 at [60].

The complaint of delay in responding to requests for access to information

74 On 17 March 2009, the appellant applied to the second respondent for a review of conduct consisting of delay in responding to requests for access to his personnel file, staff health records and certain other documents. The personnel file was "personal information" for the purposes of the PPIP Act. The staff health records were "health information" for the purposes of the HRIP Act.

75 The complaint made by the appellant was in the following terms:

"- I applied on 12 th Nov. 08 to access to investigation report of my personnel and get a copy of it under personnel information Act.

- I applied on 14 th Feb. 09 to get personnel and Health information addressed to Human Resources.

- Then my requested referred to Medical Legal Department who impose some fees to get it under freedom of information Act, ignoring to provide it under Personal Information Act or Health personnel information Act.

- They asked me to contact someone else who are not privacy officer.

- I need this information very urgently, so that the delay caused many harm to me.

- My health information is needed for my personal reasons.

- For further information, please contact me.

- Conduct of Legal Medical Dept in delay of my request."

The second internal review

76 The internal review was again conducted by Ms Roberts. The conduct addressed consisted of two requests for information. The first was the request for his personnel file and staff health records which was made under the Freedom of Information Act 1989 (Cth) ( FOI Act ) and the PPIP and HRIP Acts. That request was made by facsimile dated 14 February 2009. The second was the request for a copy of a record of interview of the appellant. That request was said to have been made by an email dated 12 November 2008. It was not expressed to be pursuant to any statutory entitlement and was made in the context of correspondence concerning the investigation of an incident involving the appellant.

77 Ms Roberts identified the relevant principles as information protection principle 14 and Health Privacy Principle 7:

"14. Access to personal information held by agencies

A public sector agency that holds personal information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information."

"7. Access to health information

(1) An organisation that holds health information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information.

(2) ..."

78 The internal review concluded that there was not "excessive delay" in providing the appellant with access to his personnel file and staff health records. It also concluded that the appellant had not been refused access to a copy of a record of interview. The outcome of this review was advised to the appellant by letter dated 16 April 2009.

The decision of the Tribunal of 15 April 2010

79 On 21 April 2009 the appellant applied to the Tribunal for a review of this conduct. That review was conducted on the papers: s 73(5) of the ADT Act. Judicial Member Higgins had initial conduct of the application and presided over directions hearings on 9 June and 22 July 2009. On 4 November 2009, she recused herself from determining the application which was then allocated to Judicial Member Molony. On 15 April 2010 Judicial Member Molony published his reasons, concluding that there had been no contravention of any information protection principle: KT v Sydney South West Area Health Service [2010] NSWADT 94.

80 Judicial Member Molony first addressed the appellant's email dated 12 November 2008. He noted that the email related to "minutes of a meeting held to discuss an assault in which [the appellant] was involved, and refers to allegations and disciplinary action against him. It includes a request that Ms Mills mail him 'all details of investigation with statements of witnesses' ...": [2010] NSWADT 94 at [24]. He concluded:

"[26] [The appellant's] email of 12 November did not request personal or health information, but sought witness statements.

[27] In my opinion, on a proper reading, it is not a request by [the appellant], under the PIPPA or the HRIPA, for access to his personal/health information held by the hospital. There is no indication that [the appellant] was making the request under either PIPPA or the HRIPA. It cannot be fairly construed as such a request. Rather, it is a request for documents relating to an investigation of an alleged assault involving [the appellant]."

81 He then addressed the request made by the facsimile dated 14 February 2009. That letter was in the following terms:

"Would you please send my entire file in your [sic] on my address under Privacy and Personnel Information Act, 1998 and Freedom of Information Act, 1989.

I wish to get it as soon as possible, and keep all my personnel and health information to be strictly protected and not to be disclosed without my consent in advance according to PPIP Act 1998 and HIP Act 2002."

82 The Tribunal made the following findings with respect to that request. First, that it was received on 16 February 2009 and forwarded to the officer within the second respondent responsible for addressing information requests under the FOI Act. On 16 February that officer wrote to the appellant requesting that he pay the application fee due under s 17(c) of the FOI Act: [2010] NSWADT 94 at [30], [38]. Secondly, that on 18 February, the appellant requested that officer by telephone not to process the request under the FOI Act and to process the request under the PPIP Act: [2010] NSWADT 94 at [31], [38]. Thirdly, that the officer responsible for processing the application under the FOI Act did not close that application, and forward the appellant's request to the officers within the second respondent responsible for dealing with applications for information under the PPIP Act and the HRIP Act, until 11 March 2009: [2010] NSWADT 94 at [31], [39]. Fourthly, that on 13 March 2009 the appellant wrote to the officer responsible for the FOI Act application complaining of delay in processing his request. In that letter he stated:

"- You telephoned me on 18 February 09 enquiring of what I have to do, I TOLD YOU WHY NOT MY REQUEST TO BE UNDER PPIP or HIP and why were you insisting on to start the processing under freedom of information Act only,. I told you don't send under freedom of information if makes trouble for you, you can send it under PPIP and HIP

- I confirm that you agree (in phone conversation) of that and you decided you will do the necessary towards sending it under PPIP and HIP."

See [2010] NSWADT 94 at [32]. Finally, that on 17 March the appellant had requested an internal review of this conduct under s 53 of the PPIP Act.

83 Judicial Member Molony then addressed whether there was any "excessive delay" in processing the applications for information under the PPIP and HRIP Acts. He considered that for delay to be "excessive" it must exceed what is "the usual or proper limit or degree" or what is "right, proportionate or desirable": [2010] NSWADT 94 at [42]-[44]. He noted that neither Act prescribes a time within which access to information is to be given and that the appellant had not identified in his request any urgent reason for having "access" to the relevant information (although he had requested that he receive it "as soon as possible"): [2010] NSWADT 94 at [37], [45].

84 He concluded that in the circumstances there was not "excessive delay". His reasons for arriving at that evaluative judgment were stated as follows:

"[46] In my opinion the relevant factors to be taken into account surrounding KT request of 14 February 209 are that it was made under three separate pieces of legislation and encompassed, in reality, three separate applications for access under the FOIA, the PIPPA and the HRIPA. Secondly, under arrangements made within the agency different officers had responsibility for determining each of those requests. Thirdly, the request under the FOIA related to the same information as that made under the other requests, and was subject to statutory time limits. As a result, the request under the FOIA was considered first. Fourthly, KT orally advised the FOI officer that he did not wish to pay the applicable fee and wanted to rely on his other requests, but the FOI officer did not close the FOI application at that time; instead waiting for the expiration of the 21 day period in which a decision had to be made, before doing so. She then immediately transferred the requests to the relevant officers to consider the PIPPA and HRIPA requests. Five days later, but before any action was taken by those officers, KT sought a review of the conduct in delaying his access to the documents."

Reference was then made to the provisions in s 5 of the PPIP Act and s 22 of the HRIP Act which provide that neither Act lessens any obligations of a public sector agency under the FOI Act. The Judicial Member continued:

"[49] Given those provisions, and the internal arrangements for the processing of requests for access to information under the three Acts within the SSWAHS, I think it reasonable that KT's request was first referred to the FOI officer. While I accept that there is some substance to KT's complaint of delay as a result of the FOI officer not closing his FOI application soon after his phone conversation with her on 18 February 2009, I can also see that, as KT had not confirmed his advice in writing, an abundance of caution might well have led the FOI officer to wait as long as possible to close the application without written confirmation. This is especially so given the considerable history of disputes between KT and the SSWAHS.

[50] Irrespective of the explanations for the delay, the reality is that the [sic] between SSWAHS receiving his request and his application for internal review of conduct (the delay) a total 29 days had passed. Given the relevant circumstances and conduct I do not accept that this is an excessive delay."

The decision of the Appeal Panel

85 It was not argued before the Appeal Panel that the Tribunal had misconstrued the expression "excessive delay" and that the proper construction of that expression involved a question of law: see Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 394-398 and the discussion in OV & OW v Members of the Board of the Wesley Mission Council [2010] NSWCA 155; (2010) 270 ALR 542 at [2]-[8], [27]-[31]. Nor was it argued before this Court that the Appeal Panel had erred in treating the Tribunal's decision that there was not "excessive delay" as one of fact which also required the finding of primary facts relevant to that evaluative judgment.

86 The Appeal Panel concluded that there was no error identified in the way the Tribunal had addressed the question before it. The submissions made by the appellant to a large extent repeat the submissions made in the appeal against the decision in appeal No. 109025 or address questions of fact. It is again convenient to address those matters in the order in which they are dealt with in the appellant's written submissions.

Denial of procedural fairness before the Appeal Panel

87 The appellant says that he was denied procedural fairness before the Appeal Panel because the Panel did not grant leave to extend the appeal to a review of the merits. Neither the appellant's written submissions to the Appeal Panel in relation to this appeal nor his oral submissions (T10-T15) to the Appeal Panel contain any application by him to extend this appeal to a review of the merits. This provides an explanation as to why the Appeal Panel does not address any such application in its reasons. There was no denial of procedural fairness in not dealing with an application which was not made.

88 The appellant also says that there was actual bias on the part of the Tribunal. For the reasons given above in relation to the appeal from the decision dismissing appeal No. 109025, this submission is rejected. There was no suggestion of bias on the part of Judicial Member Molony and no argument to that effect was pressed before the Appeal Panel.

The Tribunal erred in concluding that there was no "excessive delay"

89 The appellant asserts that this conclusion was wrong but does not support that argument by reference to any matter which involves a question of law. Specifically, he does not say that the Tribunal adopted a wrong construction of that expression, that such an evaluative conclusion was not available in the circumstances as found or that there was no evidence to support the primary findings of fact as to those circumstances: see Health Care Complaints Commission v Karalasingham at [18]-[19].

The Appeal Panel did not give effect to "Government guidelines or policies"

90 The appellant argues that the Appeal Panel should have had regard to relevant "Government policy" as required by s 64(1) of the ADT Act. The appellant refers to The NSW FOI Manual dated August 2007. That Manual states that it contains statements "of Government policy relating to FOI" which must be followed by Government agencies. Specifically, it states that where a sentence or paragraph in "this Manual is bolded and underlined, and the word [policy] appears at the end of it, that sentence or paragraph reflects a policy determined by the Department of Premier and Cabinet, which must be observed by all agencies". The statement in the Manual relied upon by the appellant follows paragraph 1.4.8 and is in a boxed section containing opinions expressed by the Ombudsman. The Manual makes clear that those opinions are included "for information and guidance only" and "to assist agencies to understand how the Office of the Ombudsman interprets the Act". Fatally for this argument, that statement is not bolded or underlined and does not purport to be or record "Government policy" to which s 64(1) might possibly apply.

The Appeal Panel did not take account of various factual matters

91 The appellant lists a number of matters which it is said the Appeal Panel failed to take into account. Most of the matters listed were not relevant to any consideration of whether there was "excessive delay" on the part of the second respondent. Reference is made to "NSW Health Policies" and to extracts from The NSW FOI Manual. None of the material relied upon identifies any relevant error of the Tribunal or of the Appeal Panel.

Conclusion in appeal against decision in appeal No. 109028

92 The appellant has not identified any error of the Appeal Panel in respect of a question of law which was material to its decision to dismiss this appeal. The appeal to this Court from that decision should be dismissed.

Appeal against the decision of the Appeal Panel in appeal No. 109029

93 The Appeal Panel dismissed the appeal from the Tribunal's exercise of discretion to order that the appellant pay costs of the second respondent: [2010] NSWADTAP 60 at [47].

The costs order of the Tribunal

94 After Judicial Member Molony had given his decision on 12 February 2010, the second respondent applied orally for an order for costs under s 88(1A) of the ADT Act. That section relevantly provides:

" 88. Costs

(1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section.

(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:

...

(vi) vexatiously conducting the proceedings,

...

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

...

(e) any other matter that the Tribunal considers relevant.

(2) The Tribunal may:

(a) determine by whom and to what extent costs are to be paid,

...

(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.

(4) In this section, costs includes:

(a) costs of or incidental to proceedings in the Tribunal."

95 Section 88(1A) requires that the Tribunal be "satisfied" that it was "fair" to award costs in the amount or calculated as proposed having regard to the specified matters which include any "other matter" that the Tribunal considers relevant. The exercise of that discretion is conditioned on the Tribunal being "satisfied that it is fair to do so" which requires an evaluative judgment which in turn must have regard to specified matters which themselves involve further findings of fact and evaluative judgments: AT v Commissioner of Police, NSW [2010] NSWCA 131 at [21].

96 On 27 April 2010 Judicial Member Molony ordered that the appellant pay one-half of the second respondent's costs incurred up to and including 12 August 2009 and that he pay the respondent's costs incurred after 12 August 2009. The significance of 12 August 2009 is that the Judicial Member concluded that by that date a reasonable and objective assessment of the appellant's case should have led him to withdraw his first application: [2010] NSWADT 102 at [41]-[42].

The decision of the Appeal Panel

97 The Appeal Panel rejected the appellant's argument that he had been denied procedural fairness in relation to the second respondent's application for a costs order. It did so on the basis that when the application was foreshadowed the Tribunal gave directions allowing the appellant to respond by written submissions, which he did: [2010] NSWADTAP 60 at [42]-[43], [45]. The Appeal Panel also addressed whether the Tribunal had erred in exercising the discretion to award costs. It concluded:

"[47] The Tribunal is exercising a broad discretion when making a decision in relation to a costs application. The factors listed in s 88 are merely for guidance in that regard. In this instance, the Tribunal had regard to relevant considerations, it did not take into account any irrelevant considerations, and there is nothing about the decision (though [the appellant] will no doubt disagree) that suggests that its judgment involved any manifest injustice."

The appellant's arguments to this Court

98 In oral argument before this Court, the appellant contended that the Tribunal was not entitled to award costs because the proceedings were "for an original decision" and the PPIP and HRIP Acts do not provide for the awarding of costs in such proceedings: s 88(3) of the ADT Act. That is not correct. The proceedings before the Tribunal were proceedings in respect of a "reviewable decision". The jurisdiction conferred on the Tribunal by s 55 of the PPIP Act is to review conduct of the public sector agency which is the relevant "administrator" whose conduct is the "reviewable decision": ss 8, 9, 38 of the ADT Act.

99 In his written submissions to this Court, the appellant maintains, on the basis of his arguments in the appeal from the Appeal Panel's underlying decision, that his case before the Tribunal with respect to the complaint relating to disclosure of information was neither "untenable" nor "vexatious".

100 Judicial Member Molony considered that aspects of the appellant's case and arguments made to him were untenable either because they went beyond the scope of the application for review or, on an objective assessment of the evidence, were bound to fail: [2010] NSWADT 102 at [35]-[43]. He also considered that the appellant's conduct in pursuing claims which were outside the scope of the review under s 55 was vexatious: [2010] NSWADT 102 at [40]. Each of those conclusions was available on the evidence before the Tribunal and the Appeal Panel did not err in so concluding.

Conclusion in appeal against decision in appeal No. 109029

101 The appellant has not identified any error on a question of law in the Appeal Panel's decision to dismiss the appeal from this costs order.

Conclusion and orders in relation to the appeal to this Court

102 For these reasons, the appeal to this Court against the three decisions of the Appeal Panel should be dismissed. There is no reason why the appellant should not pay the costs of that appeal.

103 The orders I propose be made are:

(1) The appeal be dismissed.

(2) The appellant pay the second respondent's costs of the appeal.

104 Handley AJA: I agree with Meagher JA.

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Decision last updated: 28 February 2012