WL v Randwick City Council (No 2) (GD) [2008] NSWADTAP 52

Appeal Panel - Internal

CITATION: WL v Randwick City Council (No 2) (GD) [2008] NSWADTAP 52

APPELLANT WL PARTIES: RESPONDENT Randwick City Council

FILE NUMBER: 089029

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 13 May 2008

DATE OF DECISION: 7 August 2008

BEFORE: O'Connor K - DCJ (President)

CATCHWORDS: Remittal following Successful Appeal - Nature of Power - Bias - Objection to Same Member Continuing to Preside

MATTER FOR DECISION: Interlocutory Appeal

DECISION UNDER APPEAL: WL v Randwick City Council [2008] NSWADT 87

FILE NUMBER UNDER APPEAL: 073294

DATE OF DECISION UNDER APPEAL: 03/18/2008

Administrative Decisions Tribunal (General) Regulation 2004 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Legal Profession Act 2004 Privacy and Personal Information Protection Act 1998

CASES CITED: WL v Randwick City Council (GD) [2007] NSWADTAP 58 WL v Randwick City Council [2008] NSWADT 87

APPELLANT In person REPRESENTATION: RESPONDENT A Seton, solicitor, Marsdens Law Group

1. Leave granted ORDERS: 2. Appeal dismissed 3. Remit the appellant's application to a differently constituted Tribunal.

REASONS FOR DECISION 1 This is the second appeal in this matter. The appellant is an applicant to the Tribunal under the Privacy and Personal Information Protection Act 1998 (the Act or the Privacy Act). He has applied for review of certain conduct of the respondent agency. 2 On the occasion of the first appeal the question was whether the General Division of the Tribunal had correctly declined to exercise jurisdiction. The Appeal Panel ruled that the Tribunal did have jurisdiction, and remitted the matter for re-determination having regard to its reasons. It is helpful in setting a context for the present appeal, to repeat the concluding paragraphs of the Appeal Panel decision, WL v Randwick City Council (GD) [2007] NSWADTAP 58: '50 It will be seen that the Appeal Panel has a number of concerns over the analysis adopted by the Tribunal and the Council. In our view the evidence does not provide a safe basis for reaching the conclusion that the Act was not applicable, because 'personal information' was not collected, used or disclosed. Further, the Tribunal and the Council have given an interpretation to the meaning of 'personal information' which draws wrongly on the learning surrounding the 'personal affairs' exemption in the FOI Act. What evidence there is firmly points, in our view, to the conclusion that, at least by the time Mr Kerr began communicating with the strata manager, he was communicating 'personal information' held in a recorded form. We are not satisfied on the basis of the evidence as it stands that the terms of the protection given in respect of disclosure of personal information by the section 41 Direction have been satisfied. 51 The appellant seeks leave to have the matter extended to the merits. It is not desirable, we consider, for the Appeal Panel to take that step in the present case. There needs, we think, to be much clearer evidence placed before the Tribunal by the Council, and there needs to be a number of findings made, and various questions of interpretation reconsidered. There still remains much to be done. Extensions to the merits are best suited to situations where little is left to be done by way of evidence or analysis.' 3 The matter reopened before the General Division in October 2007. 4 WL objected to the same presiding member as previously (Mr Montgomery) continuing to sit in the matter. The Tribunal's decision was made on the papers. Submissions closed on 18 February 2008, the decision was delivered on 18 March 2008: WL v Randwick City Council [2008] NSWADT 87. The member refused WL's application that he disqualify himself. 5 WL now appeals from that decision. The appeal was filed 3 April 2008. With the parties' agreement, this decision is to be made without a hearing: see further Administrative Decisions Tribunal Act 1997 (ADT Act), s 76. 6 It goes to an interlocutory matter: disqualification. Accordingly the appeal is an interlocutory appeal, and requires leave, and, as permitted, is being dealt with by a single presidential member assigned for the purpose, the President sitting alone. In the event that leave is granted, the disposal of the matter may also be dealt with by a single presidential member so assigned, and that has occurred in this case. See, ADT Act, s 24A(1)(f), (2)(a); s 113(2A), (2B). The Grounds of Appeal 7 The grounds of appeal in the Notice of Appeal are divided, as is required by the Tribunal, into those raising questions of law, and those said to justify an extension of the appeal to the merits, for which leave is sought. 8 The grounds of appeal under the questions of law heading are divided into two categories: 'multiple and repeated breaches of natural justice', 'errors concerning the decision'. Under each of these headings there are detailed, wide-ranging submissions. Under the first heading they refer to numerous events in the proceedings to date before the member where it is said the member conducted himself in a way that favoured the respondent agency, or made mistakes that show that he is unsuited to continuing to deal with the matter. Under the second heading there are several criticisms of particular passages or statements in the reasons for the decision now under appeal. Similar matters are raised as justifying an extension of the appeal to the merits. There are additional submissions in the Application for Leave to appeal an interlocutory decision. 9 The appellant shows a familiarity with administrative law. In the course of the submissions there is reference to the leading cases in Australia on disqualification for bias, the concept of Wednesbury unreasonableness, the recent Australian case law on that subject, recent case law in the New South Wales Court of Appeal relating to the case management practices and objections on the ground of bias and higher court rulings going to the question of remittal to a differently constituted tribunal. The submissions under the extension to the merits heading refer to similar matters, and also to the learning on the grounds of judicial review in connection with the principle of 'proportionality'. 10 Under both headings there are also references to legal professional discipline, and statements made about the conduct of lawyers representing the agency in these proceedings. In particular it is said that s 347 certificate should have been filed, and it has not, therefore they should, at the least, be excluded from the proceedings, and possibly be the subject of a disciplinary complaint. 11 The reference is to s 347 of the Legal Profession Act 2004. The civil liability reforms of the early 2000's led to a rule that lawyers cannot file documentation on a claim or defence of a claim of damages unless a certificate attesting 'that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success'. In this case WL's application includes a claim for the Tribunal to exercise its power to order the agency to pay an amount 'not exceeding $40,000 by way of compensation for any loss or damage': the Act, s 55(2)(a). The Member's Reasons 12 Remittal Criteria: The member's decision reasons begin by referring to statements made by the Appeal Panel of the Tribunal in relation to the question of whether to remit a matter after successful appeal to the same member(s) whose decision has been appealed, or to a differently constituted bench. 13 The ordinary practice of Appeal Panels is to remit the matter back to the same member. It can normally be expected that the member will approach the matter afresh on a dispassionate basis, and amend the approach taken on the previous occasion so as to avoid the error(s) identified by the Appeal Panel. The Appeal Panel itself sits in the same relationship on these matters to the Supreme Court as does that Court to the High Court. There is nothing unusual in having a matter returned if an appeal is successful to the same lower court or tribunal bench. On the other hand, it is acknowledged that sometimes it is better to give the matter back to a bench differently constituted, and orders or directions may be made to that effect. 14 The most typical situation where remittal to a different bench occurs is where there have been findings relating to the evidence led by the successful party on appeal that go to credit. This is not a case of that kind. 15 Another situation where remittal to a different bench sometimes occurs is where the successful party on appeal is a litigant in person and not a lawyer. A litigant in person may have greater difficulty in accepting that the member appealed against is expected, and should, bring a dispassionate mind to the task. The Tribunal refers to this consideration in its reasons to these matters. 16 It may have been expected that this appellant would have a greater appreciation than most of this point which has to do with the ability to exercise independent, professional judgement. The material reveals that the appellant is a highly qualified and leading professional in another field (medical science). However, in the submissions accompanying the leave application, he notes that he is not legally educated, and that he did not appreciate the import of the Appeal Panel's orders when it remitted the matter to the Tribunal. He thought he would get a different member. He says that he has lost faith in getting a fair hearing under present conditions. 17 Disqualification for Bias: The Tribunal goes on to deal with the application for disqualification on the ground of apprehended or actual bias. It refers to the relevant principles. It then moves to apply the principles to the concerns raised by WL. The Tribunal states: '20 In order to determine WL's application I therefore must consider whether the possibility of a perception of bias is a real one, not a remote one, and 'firmly established'. 21 In this matter, WL's concerns did not arise from some step or circumstance existing prior to and beyond the confines of the litigation (see Jae Kyung LEE at [32]). They have arisen from the determination that I made in the earlier decision and from my role as case manager in relation to the conduct of the parties to the proceedings. 22 In the earlier decision I dealt with the preliminary issue of jurisdiction. I have not made credibility findings or indicated a preference for a particular witness or witnesses. There has been no hearing to determine any factual matters that are in dispute nor has there been any hearing in relation to the question of whether there has been a breach of any of the information protection principles in the Privacy and Personal Information Protection Act 1998 or the determination of any factual matters relating to that question. 23 Obviously, it is difficult for me to put myself in the shoes of a fair-minded lay observer when I am the one who has been hearing this case. Nevertheless, in these circumstances I do not consider that a fair-minded lay observer fully informed of the objective facts might reasonably apprehend as 'firmly established' that I would not bring an impartial and unprejudiced mind to the resolution of the questions I am called on to decide. For this reason I decline WL's request that I disqualify myself.' 18 In my view, there is nothing problematic about the way the Tribunal approached consideration of the bias objection. It referred to the relevant principles. Having referred to the relevant principles it applied them in a way that does not, in my view, call for any intervention. There was nothing, in my view, manifestly unreasonable about its judgment. There is nothing, in my view, to indicate any misunderstanding of the relevant principles. There was no absence of proportionality. We do not have transcripts of preliminary proceedings in Privacy Act matters as they take the form of planning meetings held in conference rooms without a transcription service present. There is nothing in the material on the file to suggest that the member has been handling the matter other than in the usual way. 19 WL's application remains at a preliminary stage of the process. The Tribunal had a view as to certain threshold matters (the interpretation to be given to the term 'personal information', the interpretation given to the 'publicly available information' exclusion, and the acceptance of the Council's case that in any event its conduct if subject to the Act is lawful on the basis of a direction issued under s 41 of the Act). The Appeal Panel's decision has now disposed of these threshold considerations. 20 I am not satisfied that there has been any error of law in the way that the member has dealt with the disqualification objection. 21 I do not propose to deal seriatim with the numerous submissions of law made by the appellant, and the various criticisms made of the case management decisions taken by the Tribunal member. Dealing with substantive complaints made under the Privacy Act is a routine task of the group of members of the General Division of the Tribunal who belong to the list to which this member is allocated. The member under notice in these proceedings is a highly experienced member of the Tribunal who has sat on cases of this kind on numerous occasions. Disposition 22 The Tribunal process is now again stalled, and it has not been able to move on and deal with the substantive complaint of WL. 23 It might be said that I should exercise the listing discretion given to me as President (s 22(3)), and assign the matter to another member. Once a matter has been allocated to a member, as I see it the discretion given by s 22(3) is exhausted. The principle of judicial independence comes into play. The member must proceed in accordance with his or her oath: to 'faithfully and impartially discharge the duties of the office of a non-presidential judicial member': Administrative Decisions Tribunal (General) Regulation 2004, cl 4, Sch 1). 24 However the appeal provisions of the ADT Act do allow for the possibility that the Appeal Panel send a matter back to a differently constituted bench. 25 On the last occasion, the Appeal Panel (in which I presided, and sat with two other members) did not deal closely with the question of whether to remit the matter to the same or a differently constituted Tribunal. As that case, like the present appeal, was determined on the papers, the Appeal Panel simply made a routine order for remittal without seeking any views from the parties. It did not anticipate any objection of the degree that has now emerged. 26 In my view there is nothing that the applicant should be concerned about in having the same member continue to deal with the matter. 27 On the other hand, the applicant is unrepresented, it is clear that he has an animus towards the present member continuing to deal with the matter, the agency has its own interest in achieving finality to the proceedings and there is a reduced likelihood of that occurring if it goes back to the same member. Accordingly, I am inclined, on this occasion, to send the matter back to a different member. This should not be seen as a precedent for other cases. 28 While such an order would normally only follow in circumstances where an appeal is upheld, the order-making provisions of ss 114 and 115 are not expressed to be dependent on a successful appeal. The power under s 114 is simply 'may make such orders as it thinks appropriate in light of its decision'. 29 This is an unusual situation. I am disposed to make an order for remittal which puts an end to the present kind of objection and offers some hope of the proceedings being brought to an end. 30 Accordingly I will grant leave, dismiss the appeal, and remit the matter to a differently constituted Tribunal. Order 1. Leave granted 2. Appeal dismissed 3. Remit the appellant's application to a differently constituted Tribunal.

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