Privacy Appeal Allowed: Summons Set Aside Due to Lack of Legitimate Forensic Purpose

The Tribunal allowed an appeal and set aside a summons issued to a potential witness, finding that the summons lacked a legitimate forensic purpose as it could not be shown how the testimony would assist in resolving the issues at hand. The case involved privacy and public access rights under the Government Information (Public Access) Act 2009 and the Privacy and Personal Information Protection Act 1998.

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: [NAME] v [NAME] [2023] NSWCATAP 192 Hearing dates: On the papers Date of orders: 18 July 2023 Decision date: 18 July 2023 Jurisdiction: [NAME]: A Suthers, Principal Member Decision: (1) Leave to appeal is granted; (2) The appeal is allowed; (3) The summons to [NAME] issued 12 December 2022 is set aside. Catchwords: APPEAL – from refusal to set aside summons to a potential witness in privacy proceedings – requirement for agency to consult in application for release of information under the Government Information (Public Access) Act 2009 ([NAME]) - nature of claimed legitimate forensic purpose for person consulted to give evidence under summons Legislation Cited: Civil and Administrative Tribunal Act 2013 ([NAME]) Government Information (Public Access) Act 2009 ([NAME]) Privacy and Personal Information Protection Act 1998 ([NAME]) Uniform Civil Procedure Rules 2005 ([NAME]) Cases Cited: Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN ([NAME]) 250 Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 Collins v Urban [2014] NSWCATAP 17 [NAME] v University of Newcastle [2017] NSWCATAD 350 Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 [NAME] v Vice-Chancellor, Macquarie University [2003] NSWADT 78 In re the Will of [NAME] (deceased) (1946) 46 SR ([NAME]) 318 at 323; (1946) 63 WN ([NAME]) 176 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 R v Baines [1908] UKLawRpKQB 159; [1909] 1 KB 258 Re Don [2006] NSWSC 1125 Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited [2020] NSWCATAP 182 Roads and Maritime Services v [NAME]; AF v Roads and Maritime Services (GD) [2011] NSWADTAP 63 Secretary, Department of Communities and Justice v Feeney [2021] NSWCATAP 139 Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206 Waind v Hill and National Employers' Mutual General Association Ltd [1978] 1 NSWLR 372 [NAME] v [NAME] [2023] NSWCATAD 111 [NAME] v [NAME] [2023] NSWCATAD 63 Witness v Marsden & Anor [2000] NSWCA 52 Yuen v Thom [2016] NSWCATAP 243 Texts Cited: None cited Category: Principal judgment Parties: [NAME] (Appellant) [NAME] (Respondent)

Also Heard:

[NAME]: Solicitors:

[redacted] Respondent (Self-represented) [NAME] (Self-represented) File Number(s): 2023/00157560 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2023] NSWCATAD 111 Date of Decision: 15 May 2023 Before: [NAME], Senior Member File Number(s): 2022/00264601

REASONS FOR DECISION

Summary 1. The respondent, [NAME], is the site administrator for a public website, [NAME]). This appeal concerns what happened after [NAME] made an application to the appellant for access to information held by it under the Government Information (Public Access) Act 2009 ([NAME]) (GIPA Act). The application sought information about an organisation called the [NAME] ([NAME]). A [NAME] holds two, unrelated, positions as both Chair of the [NAME] for the appellant.

2. In processing the application, another employee of the appellant, [NAME], sent an email to [NAME] in her capacity as the Chair of [NAME], consulting her on the release of the information requested. That email included that [NAME] had submitted the access application and was acting on behalf of [NAME]. [NAME] has applied to review a decision about the conduct of the appellant under the Privacy and Personal Information Protection Act 1998 ([NAME]) (PPIP Act), alleging a breach of information protection principle (IPP) 11.

3. I am to determine the appeal on the papers, the [NAME] having previously dispensed with a hearing with the consent of the parties. In these reasons, I have used the name and lack of capitalisation of the appellant used in the proceedings at first instance and the notice of appeal. I suspect some correction is called for.

4. The appeal concerns whether the Tribunal erred in not setting aside a summons issued at the request of [NAME] for [NAME] to attend and give evidence in the substantive hearing of the proceedings at first instance. For the reasons that follow, I am satisfied it did.

Background 1. On 21 March 2022, [NAME] made her access application to the appellant under the GIPA Act, seeking information related to [NAME] including membership and attendance lists over several years. The application noted [NAME]'s understanding that the Chair of [NAME] is [NAME], who she expected to have access to the requested information.

2. On 19 April 2022, the officer processing the GIPA Act application ([NAME]) sent the relevant email to [NAME], in her capacity as the Chair of [NAME], seeking consultation on the release of such information held by the appellant. The email noted that [NAME] had authored the access application.

3. On 21 April 2022, a member of [NAME] responded to the email objecting to the release of personal information because it "could pose a risk of individuals being individually named, harassed or intimidated". On the same day, another member responded to the email chain stating that the comment was "agreed and endorsed".

4. On 5 May 2022, [NAME] issued a decision which did not release any information to [NAME] under the GIPA Act. 5. [NAME] alleges that the appellant breached s. 18 of the PPIP Act (the restriction on disclosure) by informing [NAME] that she authored the access application when undertaking the consultation.

6. On 5 December 2022, [NAME] applied for a summons to be issued to each of [NAME] and [NAME].

7. On 12 December 2022, the Registrar issued each summons, requiring the attendance of those persons on 18 January 2023, the scheduled hearing of the application.

8. On 12 January 2023, the appellant applied to set aside each summons, primarily on the basis that they lacked a legitimate forensic purpose. That allegation was framed as follows: The summonses lack a legitimate forensic purpose. The conduct under review in these proceedings is an email chain. The respondent does not dispute the documentary record that is contained in the s. 58 documents, filed in the Tribunal on 17 October 2022. The applicant has not identified any specific evidence that is sought from either prospective witness. The respondent submits that the 'direct and personal knowledge' of the two summonsed [NAME] officers is irrelevant to the issue in dispute and that the dispute may be resolved on the basis of the documentary record. Neither officer has given evidence in these proceedings. The only evidence required to resolve the 'threshold issue' of whether any 'personal information' was disclosed is contained in the affidavit of [NAME] affirmed on 28 November 2022, to which the knowledge of the two summonsed [NAME] officers is irrelevant. The two alternative issues to be resolved in the proceedings are questions of law, to which the knowledge of the two [NAME] officers is also irrelevant (see summary of issues at [3] of the Respondent's Submissions filed 28 November 2022). Those questions of law are: i. whether the applicant expressly consented to the GIPA Application being shared with the [NAME] in the cover letter, such that the respondent was exempted from compliance with s. 18 of the PPIP Act by s.26(2); and ii. whether any disclosure was lawfully authorised or required and therefore exempt under s. 25 of the PPIP Act, noting that the emails the subject of review were sent for the purpose of consultation, which [NAME] was required to undertake pursuant to s. 54(1) of the Government Information (Public Access) Act 2009 ('the GIPA Act'), and nothing in the PPIP Act affects the operation of the GIPA Act: s.5, PPIP Act"

1. In a decision dated 17 March 2023, the Tribunal declined to set aside each summons. The Tribunal adopted the summary of principle in [NAME] v University of Newcastle [2017] NSWCATAD 350 at [8]—[12]. At [27]—[30], the Tribunal found: 27 The Tribunal's initial task is to identify the issues in dispute so it can then determine, in the light of those issues, whether the summonses issued (in this case the Summonses) are for a legitimate forensic purpose. 28 There appears to be significant confusion in the submissions of the Respondent as to whether the Applicant's alleged personal information was 'disclosed' to [NAME] as the Privacy Officer of the Respondent or as the Chair (or a representative) of [NAME]; 29 After considering and applying the principles referred to above, I find that the scope of the Tribunal's administrative review in this case is whether or not the Conduct of Concern results in the Respondent contravening IPP 11. Based on the material before me, if the Respondent's 'threshold issues' (which are yet to be heard) do not succeed, I am satisfied that an issue in dispute is whether any of the Applicant's relevant personal information was 'disclosed' by [NAME] of the Respondent to the specified third-party (i.e. [NAME]) via disclosure to its representative, [NAME]. 30 Based on my finding in [29] above, I am satisfied that the testimony of each of [NAME] of the Respondent and [NAME] of [NAME] has apparent relevance to an issue in dispute in these proceedings and will 'throw light on' the issue of whether or not the Applicant's relevant personal information was 'disclosed' to and received by [NAME] as a representative of [NAME], a third-party, or to her in her role as the Privacy Officer of the Respondent. Therefore, I am satisfied that each of the Summonses have a legitimate forensic purpose.

1. On 21 March 2023, the appellant renewed its application to set aside the summons directed to [NAME] only. The application relied, in part, on closed evidence. The appellant did not press a prior allegation that no unlawful disclosure had occurred because [NAME] already had the information as an employee of the appellant when she received it on behalf of [NAME], the appellant acknowledged that it did not resist liability by disputing that a "disclosure" of information had occurred.

2. The Tribunal heard the renewed application, and the preliminary question of whether "personal information" had been transmitted to [NAME], together. That led to the decision which, in part, is the decision that is the subject of this appeal.

3. The Tribunal decided that "personal information" had been disclosed and dismissed the renewed application to set aside the summons directed to [NAME]: [NAME] v [NAME] [2023] NSWCATAD 111. It is solely in respect of the second aspect, the "summons decision", that the appellant appeals. It has done so within time.

Tribunal's reasons for decision 1. The Tribunal's reasons on the summons decision were concise, no doubt because the issues had been previously ventilated in the earlier application to set aside the summons (see [NAME] v [NAME] [2023] NSWCATAD 63): The Applicant's submissions – New Miscellaneous Application 43 Given the New Miscellaneous Application was filed with the Tribunal immediately prior to the March 2023 Hearing, the Applicant had no time to make written submissions but agreed to proceed on the basis of her prior submissions in relation to the Miscellaneous Applications Decisions and oral submissions made during the March 2023 Hearing. 44 In essence, the Applicant's oral submissions were that [NAME]‑[NAME] was required for more than just the issue of whether or not she was sent and received the relevant personal information of the Applicant. The other relevant issues on which the Applicant believed [NAME]‑[NAME] could shed light included matters raised by the Respondent as regards the application of s 25 PPIP Act and s 54 GIPA Act (and thus whether the Respondent is exempt from complying with s 18 PPIP Act in the specific circumstances of this case). Considerations and findings – New Miscellaneous Application 45 While the concessions in paragraph [58] of the Respondent Submissions is noted, as are the further concessions noted in [42(2)] above made by the Respondent, there are still questions as to whether the appropriate representative of [NAME] was notified to be contacted under s 54(1) GIPA Act and that the other requirements of s 54 GIPA Act as regards the information in question were met in relation to [NAME] and its information and thus whether the Respondent is exempted from complying with s 18 PPIP Act pursuant to s 25 PPIP Act in this case. 46 I agree that the Respondent has resolved the issues in the IR Decision as to disclosure of the information to [NAME]‑[NAME] in a capacity other than as an officer of the Respondent. However, the Respondent has not resolved by concessions the questions as to whether [NAME]‑[NAME] was the appropriate (rather than the most convenient) person to disclose that information to on behalf of [NAME] and/or if [NAME] and the information in question otherwise meet the criteria in s 54 GIPA Act. [NAME]‑[NAME] may be able to throw light on these issues and her evidence may assist the Applicant to test and make submissions to the Tribunal on whether or not the Respondent is "lawfully authorised not to comply with s 18 or [if] non‑compliance was otherwise permitted (or was necessarily implied or reasonably contemplated) under s 54(1) of the GIPA Act", which the Respondent has submitted it is and which is yet to be heard by the Tribunal. 47 Based on the above and the materials before me, I am satisfied that the Summons to Appear for [NAME] has a legitimate forensic purpose.

Scope and nature of internal appeals 1. To succeed in an appeal from an interlocutory decision such as this one, the appellant requires permission (that is, "leave") to appeal: Civil and Administrative Tribunal Act 2013 ([NAME]) (NCAT Act) s 80(2).

2. The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the [NAME], often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough as a summary to refer to Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206, where the Court said at [28] (citations omitted): Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong.

1. An application for leave to appeal from an interlocutory decision on a matter of practice and procedure faces a "high hurdle" as referred to in various decisions of the [NAME] of Appeal: see, for example, PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [3]-[6], where the authorities were collected. It is sufficient here to record what was said by Sir Frederick Jordan in In re the Will of [NAME] (deceased) (1946) 46 SR ([NAME]) 318 at 323; (1946) 63 WN ([NAME]) 176 (whilst noting that the Tribunal was not exercising a discretion) that: "...if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal."

1. I may decide to conduct a new hearing if I am satisfied that the grounds for appeal warrant it: NCAT Act, s 80(3)(a). A new hearing under s 80(3) of the NCAT Act is a hearing de novo, or "from the beginning". Otherwise, the appeal, at least insofar as it is not limited to a question of law, proceeds by way of rehearing if leave to appeal is granted: Yuen v Thom [2016] NSWCATAP 243 at [17].

2. The Notice of Appeal raised a single ground, that the Tribunal failed to identify a legitimate forensic purpose for the summons issued to [NAME]. As argued, the allegation should perhaps be more clearly stated as being that the Tribunal erred in refusing to set aside the summons where the respondent failed to identify a legitimate forensic purpose for it, but nothing turns on that as the alleged error is clear.

3. Whilst I may decide to conduct a new hearing, the parties did not ask me to do so if leave was granted and I was not satisfied that the grounds for appeal warranted it.

The appeal was arguably moot 1. What the parties had not addressed is that the summons to [NAME] required her attendance on 18 January 2023. A question arises as to whether it had any effect in compelling [NAME] to do anything after that date when the hearing was adjourned, unless varied or stood over by order of the Tribunal. No such variation was sought or obtained. The only potentially referable order, made by the Tribunal on 15 May 2023 (as order 6) that "[t]he matter is to be listed at 10.00am on Tuesday 25 July 2023 for a full day to hear the remainder of the administrative review application and for the applicant to examine the summonsed witnesses" does not do so. It is an order directed to the parties, which has no impact on the ability of the parties, or that of the Tribunal, to compel [NAME] to appear on that day.

2. That meant that if I decided the appeal, there may have been no practical consequence for the parties if the summons had no ongoing effect. The general principle for moot appeals is that they should not be entertained: Secretary, Department of Communities and Justice v Feeney [2021] NSWCATAP 139. However, that is not a principle of inflexible application.

3. Of course, the effect of my refusing to consider the appeal because the summons may be spent would almost inevitably have been a request to issue a new summons by [NAME] to [NAME]. That would, likewise, have led to the same issues arising and potentially the delayed resolution of the proceedings at first instance.

4. As a result, I had a note issued to the parties flagging this issue and seeking:

1. Confirmation from [NAME] that she maintained that [NAME] should be compelled to attend the hearing and give evidence – there may have been some doubt in this regard as [NAME] had received the submissions of the [NAME] after her submissions in the appeal had been lodged; and 2. If [NAME] maintained that [NAME] should be compelled to attend, further submissions from the parties and the [NAME] limited to the issues I had raised.

1. It was tolerably clear from her response that [NAME] maintains that [NAME] should be compelled to attend the hearing on 25 July 2023 to give evidence.

2. The appellant submits the summons is not spent. It points out that its renewed application, which led to the summons decision, sought the set-aside of the summons but also, in the alternative as order two, that "[NAME] be excused from giving evidence under the summons." The summons decision does not engage at all with that aspect of the application, but it had assumed no significance in the submissions until I had the note sent to the parties. A similar order had also been sought, but not specifically addressed, in the first application to set aside both summonses.

3. The appellant also points out, correctly, that on its own proforma terms the summons required [NAME]'s attendance on 18 January 2023 and that: [She] must continue to attend from day to day: • Unless excused by the Tribunal or the person authorised to take evidence in the proceedings, or • Until the hearing of the proceedings are completed.

1. The [NAME] adopts the position that, notwithstanding that command, the summons may be spent in the circumstances. [NAME] did not adopt a set position on the issue.

2. Despite the same proforma command being contained in a subpoena to give evidence under the Uniform Civil Procedure Rules 2005 ([NAME]) which applies in the courts, I can locate no authority in that regard.

3. It does not sit comfortably that the summons compels a witness to attend on an ongoing basis where a matter is adjourned to a date which is only fixed at a later stage. It might be argued that the reference to attending "from day to day" is only apt when a matter is set down over several consecutive days. However, on balance and in the absence of argument I will proceed on the basis that it does. Perhaps the source of discomfort is best resolved by considering the issue through the prism of whether a witness would be referred for sanction for failing to attend an adjourned hearing without appropriate notice and, as necessary, further conduct money, rather than whether they remain bound by the summons. In any event, I am satisfied that the Tribunal's dismissal of the interlocutory applications constitutes an active refusal to excuse the witnesses, even though that was not addressed in the reasons. The witnesses should consider themselves bound by the summonses on that basis.

A summons should only issue for a legitimate forensic purpose 1. As submitted by the appellant, a summons should be set aside if it lacks a legitimate forensic purpose. The principles were alluded to in the appellant's written submissions, and not put into dispute in the appeal. The forensic onus is on the issuing party to identify a legitimate forensic purpose: see Re Don [2006] NSWSC 1125 at [26(3)]; Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (Blacktown City Council), per Bell P (as His Honour the Chief Justice then was) at [73].

2. The power to set aside a summons is an instance of the Tribunal's power to regulate its processes and intervene in a case of abuse of its processes: Blacktown City Council at [32], [60], 88], [98], [100].

3. In Blacktown City Council (regarding a subpoena for production), Bell P said at [65]: It is sufficient, in my view, to justify a subpoena as having been issued for a legitimate forensic purpose if the documents sought are 'apparently relevant' or, to use the words of Nicholas J in ICAP at first instance, it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist.

1. In the same decision, Brereton JA said at [89] l agree with [Bell P], for the reasons given by his Honour, that an issuing party is not required to show that it is 'likely' (or 'on the cards') that the documents sought will materially assist its case, as distinct from that it is 'likely' (or 'on the cards') that they will add, in some way or another, to the relevant evidence in the case, and that the essential question is whether the documents called for are apparently relevant, or capable of providing a legitimate basis for cross-examination, in which case there is a legitimate forensic purpose for the issue of the subpoena. In my view, at least in civil proceedings and in the absence of any question of public interest immunity, no more is required to support the issue of a subpoena for production than that there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case. This reflects the notions that the documents relate to, throw light on, or are sufficiently relevant to the dispute; that they 'appear relevant in the sense that they relate to the subject matter of the proceedings'; or that they could possibly throw light on the issues in the case… 1. His Honour continued, at [96]: … it was unnecessary […] to demonstrate that the documents sought to be produced would materially assist [the applicant for a summons'] case, and sufficient to establish that the documents would assist on an identified issue.

1. I see no reason that the same principles are not apposite, with appropriate adjustment, to the issue of a summons to a potential witness to testify in proceedings. A summons to a witness to attend a hearing will not generally be an abuse of process if their evidence is likely to, or it is "on the cards" that it will, in some way, add to the relevant evidence in the case on an identified issue. However, if it can separately be demonstrated that the party issuing the summons "has done so for some improper, illegitimate or ulterior purpose foreign to the litigation", the Tribunal in the exercise of its discretion may still set aside the summons as an abuse of process: Blacktown City Council, per Bell P at [70].

2. Some older authority assists in that regard. In Waind v Hill and National Employers' Mutual General Association Ltd [1978] 1 NSWLR 372 at 385 Mofffitt P referred to "the invasion by the subpoena procedure of the rights of a stranger", in the following terms: 52 The court has power to refuse to admit cross-examination of a witness - even a party-witness - on an affidavit if that would be an abuse of process. In Re Mundell; Fenton v Cumberledge (1883) 48 LT 776 at 778, Pearson J made an order to that effect and referred to Raymond v Tapson (1882) 22 Ch D 430 as an authority in which Sir George Jessel MR and Cotton LJ: laid it down beyond all dispute that the court has a right to protect Her Majesty's subjects from the practice and process of this court being simply used to torture them, and not for the purposes of justice.

1. See also in this regard, Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 101, per Powell JA and Witness v Marsden & Anor [2000] NSWCA 52.

2. As was said by Bingham J in R v Baines [1908] UKLawRpKQB 159; [1909] 1 KB 258, at page 261: There can be no doubt as to the jurisdiction of the Court to interfere where it is satisfied that its process is being used for indirect or improper objects. It must not be supposed that the position which the applicant occupy [one was Prime Minister, HH Asquith, and the other Home Secretary, H J Gladstone] affords them any privilege. They stand in the same position as any other of His Majesty's subjects. But the Court has to inquire whether its process has been issued against them with the object and expectation on reasonable grounds of obtaining from them evidence which can be relevant… (emphasis added)

1. The nature of the proceedings and the legislative context in which they are conducted is also relevant: Blacktown City Council, per Bell P at [59].

The provisions in respect of which the Tribunal decided the evidence of [NAME] may have a legitimate forensic purpose 1. Section 54 of the GIPA Act provides, relevantly: 54 Consultation on public interest considerations (1) An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that— (a) the information is of a kind that requires consultation under this section, and (b) the person may reasonably be expected to have concerns about the disclosure of the information, and (c) those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information. (2) Information relating to a person is of a kind that requires consultation under this section if the information— (a) includes personal information about the person, or … (4) The purpose of consultation under this section is to ascertain whether the person has an objection to disclosure of some or all of the information and the reasons for any such objection. (5) The agency must take any objection to disclosure of information that the agency receives in the course of consultation into account in the course of determining whether there is an overriding public interest against disclosure of government information. (6) If consultation establishes that a person objects to the disclosure of information but the agency decides to provide access to the information in response to the application, access is not to be provided until the agency has first given the objector notice of the agency's decision to provide access to the information and notice of the objector's right to have that decision reviewed, and is not to be provided while review rights on the decision are pending. (7) Review rights on a decision are pending while the objector is entitled to apply for a review of the decision under Part 5 (ignoring any period that may be available by way of extension of time to apply for review), or any review duly applied for is pending.

1. Section 18 of the PPIP Act provides: 18 Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless— (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.

1. Section 25 of the PPIP Act provides: 25 Exemptions where non-compliance is lawfully authorised or required A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if— (a) the agency is lawfully authorised or required not to comply with the principle concerned, or (b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998).

Appellant's submissions

Leave to appeal 1. The appellant submits the decision at first instance worked an injustice which is reasonably clear and that the appeal involves matters of general importance, having regard to the proper application of the resources of the Tribunal. It also submits the appeal involves a question of principle and that the concept of a legitimate forensic purpose of such a summons is complicated and there is very limited relevant authority directed to that concept for summonses to compel attendance, as opposed to the production of documents.

2. The appellant submits it did not rush to an appeal when the first decision concerning the summons was made and the appellant's procedural decisions allowed the Tribunal to provide revised reasons for the summons decision. It says there appears to be no further utility ventilating the issue at first instance, notwithstanding the interlocutory character of the decision.

Submissions on the substantive appeal if leave to appeal is granted 1. The appellant relies on comments of the [NAME] of the former Administrative Decisions Tribunal on the approach to issuing a summons in the privacy jurisdiction in Roads and Maritime Services v [NAME]; AF v Roads and Maritime Services (GD) [2011] NSWADTAP 63 ([NAME]), at [42] as follows: …In the privacy review jurisdiction ordinarily the body of data about the complainant and to which legal responsibilities attach will be in recorded form. The jurisdiction does not ordinarily involve itself with oral communications or information held in the memory of an officer that has not been reduced to recorded form (see Vice-Chancellor Macquarie University v FM [2005] NSWCA 192). Those records should be able to be assembled and uplifted by the agency. There would need, as we see it, to be some anomaly apparent to the Tribunal on the face of those records before it would interest itself in the question of whether there are other records missing (and to which summonses may seek to go) from the material identified by the agency.

1. In respect of the Tribunal's reasons to decline to set aside the summons, set out at [17] above, the appellant notes that the first reason given is that "there are still questions as to whether the appropriate representative of [NAME] was notified to be contacted under s 54(1) GIPA Act" (at [46]).

2. This seems to be a suggestion that it might have been "appropriate" to consult the [NAME] via someone other than its chair [NAME], for some unstated reason. The concept of an "appropriate" liaison forms no part of the test in s 54 of the GIPA Act. Whether an email is "appropriate" is irrelevant to a review under the PPIP Act.

Accordingly, it is not "likely" that the summons will add to the relevant evidence in the proceedings and accordingly this reasoning cannot support a legitimate forensic purpose for the summons.

3. The second reason was that there remain questions as to whether "the other requirements of s 54 GIPA Act as regards the information in question were met in relation to [NAME]": at [46] and repeated in [47]. It is not correct that this is in dispute. The appellant submitted below that s 54 was in operation. [NAME] did not dispute that, instead raising concern about the effect of disclosure. The nature of the information can be understood from the documentary record. In any event, [NAME] did not contend that consultation should not have occurred or was misplaced. Rather, she complains that her name was included in the consultation email.

4. More fundamentally, the appellant submits this reasoning misunderstands the nature of a consultation obligation. The Tribunal here would call the recipient of a consultation email to give evidence as to whether the agency officer should have consulted in the way she did. However, that turns on the information available to the consulting officer (who will be available to give evidence). The evidence of [NAME] therefore is not likely to add to the relevant evidence of the case.

Accordingly, there is no legitimate forensic purpose revealed by this reasoning.

5. The third and final reason is submitted to be a "catch-all" forensic purpose, which is to say that [NAME]'s evidence "may assist the Applicant to test and make submissions to the Tribunal on whether or not the Respondent is lawfully authorised not to comply with s 18 [of the PPIP Act] or [if] non-compliance was otherwise permitted (or was necessarily implied or reasonably contemplated) under s 54(1) of the GIPA Act'."

6. The appellant submits there is patent error in this reasoning. First, the operation of the exemption is a question of construction. Second, where [NAME] cannot identify any factual issue which might bear upon the operation of the exemption, this speculative reasoning renders the summons a clear case of a "fishing expedition" (a phrase commonly used as an analogy to a situation where "a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not": Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN ([NAME]) 250, at 254). It expresses the possibility that some basis to resist the operation of the exemption may arise in oral evidence. This is not a case where the proceedings are at an early stage and the Tribunal could not identify how the evidence may relate to the issues. The parties had closed their written evidence and joined on a highly confined issue of statutory construction. As the [NAME] of the Administrative Decisions Tribunal has said, "the task should, we think, be less difficult in review proceedings where already a significant body of relevant material is known and clearly identified.": [NAME] at [42].

7. Finally, the appellant relies on comments by the [NAME] in [NAME] that care must be taken when considering summonses to be issued at the request of a self-represented party because there is "increased risk" of the cross-examination "exceeding the bounds of relevance, respect and fairness to be observed by a legal practitioner": [NAME] at [46].

8. In this appeal, the respondent asserts that the witness "has indisputably by her own Sworn Affidavit dated 08th August 2022 directly involved herself in the proceedings". There is no such affidavit in the proceedings. [NAME] is a witness in other Tribunal proceedings is irrelevant. This submission raises real questions about whether the summons is directed to a collateral purpose. The appellant says these considerations are relevant to the process of identifying a legitimate forensic purpose for summonses to give evidence.

Respondent's submissions 1. The salient submissions by the respondent are brief. After challenging whether the use of the appeal process represents an appropriate expenditure of public funds, and the parties' resources, the respondent submits the appeal is being used to benefit [NAME]. She submits this is not in keeping with the primary objectives in the NCAT Act to ensure the just, quick and cheap resolution of the real issues in dispute.

2. In addition, the respondent submits [NAME] is being allowed to "to avoid her delegated duties to appear in proceedings which concern her conduct in the exercise of the Privacy legislation, as [NAME]'s (sic) senior privacy officer".

3. In this regard, the Respondent submits the appellant has failed to make out its case for the appeal.

4. The respondent also submits [NAME] "deliberately and consciously inserted herself into the GIPA process at first instance, when she decided to represent the Appellant agency [NAME] in the GIPA Administrative Review proceedings by providing a Sworn Affidavit. It was not the Appellant's Right to Information Officer [[NAME]], which is the person rightfully expected to do so."

5. Whilst the parties' material does not make it clear, I infer [NAME] did not appear at the adjourned hearing of the substantive application in March 2023 (see Reasons in the summons decision, at [9]). That is the hearing at which, instead, the argument leading to the summons decision was agitated. The respondent goes on to submit that it is "shameful [NAME] has continued, since that time, to avoid accountability, to continually make paultry (sic) excuses to the Tribunal to avoid that accountability, to ignore formally approved summonses without prior notification to the Tribunal, and to now continue to usurp not yet quantifiable sums of public monies for her own personal use and purpose whilst hiding behind the [NAME]'s General Counsel, and [NAME]'s Principal Solicitor".

6. The respondent further submitted that the actions of [NAME] have set out a definitive pattern of behaviour such that [NAME] is enjoying the benefits of her position but at the same time avoiding any "rightful accountability".

[NAME]'s submissions.

1. The [NAME]'s central role in proceedings of this nature is in the nature of oversight in relation to the way agencies handle complaints about conduct, including the internal review of agency conduct under the PPIP Act.

2. Part 5 of the PPIP Act permits the [NAME] to appear and be heard in administrative review proceedings as of right. The [NAME]'s role is to assist the Tribunal in a similar way to an amicus curiae at common law, rather than being a party to proceedings. The Commissioner may also contribute argument on the merits of the application before the Tribunal: [NAME] v Vice-Chancellor, Macquarie University [2003] NSWADT 78; Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited [2020] NSWCATAP 182 at [119]-[120] (concerning s 104(1) of the GIPA Act, the analogous provision providing for the participation of the Information Commissioner in Tribunal proceedings under the GIPA Act.)

3. The [NAME] agrees with the appellant that leave should be granted and the appeal allowed, because:

1. The valid issuance of a summons in privacy matters is a matter of general import, both for the [NAME] and for the general administration of the Tribunal. The development (or at least ventilation) of criteria for such valid issuance would be helpful;

2. The decision of the Administrative Decisions Tribunal in [NAME], above, provides at [42] that there must be some specified missing information: There would need, as we see it, to be some anomaly apparent to the Tribunal on the face of those records before it would interest itself in the question of whether there are other records missing (and to which summonses may seek to go) from the material identified by the agency. The Commissioner submits that there is no such anomaly, nor have there been records identified as missing, even on the broadest construction;

1. The decision in [NAME] also counsels care where the applicant for the summons is a litigant in person: 'In our view, care must also be shown where the review applicant is, as is the case here, a litigant in person. There is an increased risk as compared to cases where a legal practitioner appears on behalf of the review applicant, of the examination and cross-examination of witnesses exceeding the bounds of relevance, respect and fairness expected to be observed by a legal practitioner.' The Commissioner submits that this caution is particularly apposite here. [NAME] is the applicant for the summons and a litigant in person. The Commissioner submits that the language directed at [NAME] in the respondent's submissions (e.g. 'paultry excuses' (sic) and 'continue to usurp') is intemperate and accepts the appellant's concerns that the summons may be directed to a collateral purpose;

1. In summary, the Commissioner agrees that the summons lacks a legitimate forensic purpose, the onus being on [NAME] to identify one. The Commissioner submits that the summons decision attempts to provide this at [46], by surmising that [NAME]'s evidence "may be able to throw light on these issues, and her evidence may assist the Applicant to test and make submissions to the Tribunal..." The Commissioner submits that the mere hope that some as-yet-unidentified light or assistance for [NAME]'s case may arise from the evidence of [NAME] is insufficient to find a legitimate forensic purpose for a summons in a privacy matter. The summons may be characterised as "a fishing expedition."

Appellant's submissions in reply 1. In reply, the appellant submits that [NAME]'s position that [NAME] has "delegated duties" to appear in proceedings "which concern her conduct" is misconceived. It is a matter for the agency as to how it runs its case, including whether it adduces evidence from its employees. Moreover, the relevant "conduct" is that of [NAME] (insofar as it is attributed to the appellant), not [NAME]. [NAME] was a recipient of the disclosed information.

2. In respect of the allegation that [NAME] "inserted herself' into the GIPA process by swearing an affidavit in NCAT proceedings, the appellant confirms that has not occurred in these proceedings and says that whether [NAME] has sworn an affidavit in other NCAT proceedings is irrelevant. Further, even in those separate proceedings, [NAME] says [NAME] was the person "rightfully expected" to give evidence, not [NAME]: respondent's submissions at [8]. The appellant otherwise takes exception to the characterisation of [NAME]'s conduct as described by the respondent, submitting such a characterisation is "scandalous".

Consideration 1. This is an appropriate time to note that, at least to the extent it is claimed that [NAME] has "continued to usurp not yet quantifiable sums of public monies for her own personal use and purpose whilst hiding behind the [NAME]'s General Counsel, and [NAME]'s Principal Solicitor" those comments are, as submitted by the appellant, scandalous in the sense that they make serious assertions of wrongdoing which are completely unsubstantiated by evidence or cogent submissions. They are, on that basis, so irrelevant to the proceedings and so abusive or offensive as to justify the Tribunal disregarding them. It is the appellant who brings this appeal. No other evidence of [NAME] "usurping" public monies has been put before me and the allegation is otherwise unexplained, and on that basis rejected.

2. Whilst the respondent opposed a grant of leave, she did not address the appellant's submissions on the issue. I am satisfied that the summons decision, whilst it might otherwise be seen as procedural, raises an issue of general importance regarding the administration of the Tribunal in proceedings of this nature. The issue of setting aside summonses to testify has received little recent judicial attention in the courts that I was taken to. So far as I am aware, it has not been addressed by this Tribunal in a reported decision.

3. Having granted leave, the appeal is by way of rehearing which requires me to conduct a 'real review' of the evidence and issues at first instance and of the Tribunal's reasons for decision to determine whether the Member at first instance has erred in fact or law: Lee v Lee (2019) 266 CLR 129; [2019] HCA 28.

4. I agree with the appellant that the sole forensic purpose of the summons identified by the Tribunal (and by inference taken up by the respondent) is to facilitate questioning to ascertain in which "capacity" [NAME] received personal information from the appellant about [NAME].

5. However, it is not identified how that could possibly assist in determining the issues remaining to be decided in the proceedings at first instance.

6. There is no identified potential relevance to whether "[NAME]‑[NAME] was the appropriate (rather than the most convenient) person to disclose that information to on behalf of [NAME]" as referred to by the Tribunal at [46]. Nor has it been established that such evidence could possibly elicit information as to whether the appellant's disclosure to [NAME] otherwise met the criteria in s 54 GIPA Act or how it could assist the Tribunal to decide whether the appellant is "lawfully authorised not to comply with s 18 [PPIP Act] or [if] non‑compliance was otherwise permitted (or was necessarily implied or reasonably contemplated) under s 54(1) of the GIPA Act": summons decision at [46]. On that basis, the appeal should be allowed and the summons to [NAME] set aside.

7. My decision does not rely on the concern raised by the appellant and the [NAME] as to allowing [NAME] as an unrepresented litigant to issue the summons. I observe, however, that in a Tribunal where parties are commonly expected to represent themselves (although that does not apply in this particular instance) care should be taken not to conflate the question of whether a summons to testify should be issued (i.e. whether it is an abuse of process on the basis it simply lacks a legitimate forensic purpose or is sought for a collateral purpose) and the need to contain improper questioning of a witness who may be able to give relevant evidence, in the manner referred to in [NAME] at [46]. Ensuring that examination and cross-examination of witnesses does not exceed the bounds of relevance, respect and fairness would generally be a matter for the Tribunal to manage in the hearing, although I accept that the conduct of a summons applicant may allow for an a priori inference as to whether that may be possible in some cases.

Costs of the appeal 1. In appeals of this nature, the ordinary position is that each party pays their own costs unless special circumstances warranting an order for costs is established. The parties were directed, if there was any potential for an application for costs, to raise that possibility in their written submissions. Neither did. On that basis, I make no order as to costs.

Orders 1. My orders are as follows: 1. Leave to appeal is granted; 2. The appeal is allowed; 3. The summons to [NAME] issued 12 December 2022 is set aside.

********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 July 2023