DTN v Commissioner of Police [2020] NSWCATAD 107

Read the full decision here:  DTN v Commissioner of Police [2020] NSWCATAD 107

Summary

The Tribunal was required to determine whether the applicant, DTN, had made an application for review of the conduct by Commissioner of Police, within the time limit set by section 53 of the Privacy and Personal Information Protection Act 1998 (NSW) (PIPP Act). DTN’s application for review concerned his claim that a 2012 medical report contained false information about him. The question for the Tribunal was whether DTN was taken to have first become aware of the relevant conduct when the relevant materials were produced to his solicitors in 2018, even if these materials were not passed on to DTN until he requested a copy of the medical report in April 2019. The Tribunal (at [51]) found that, for the purposes of section 53 of the PIPP Act, DTN first became aware of the conduct the subject of the application in April 2019, notwithstanding that the materials in question were provided to his solicitors in 2018. DTN’s application for review under section 53 of the PPIP Act in September 2019, was within the required six-month time period for making an application. The Tribunal (at [44]-[46]) determined that the solicitors were not engaged by DTN in 2018 to consider any claims by DTN under the PPIP Act, and rejected the argument by the Commissioner of Police (at [19]) that the solicitors were DTN’s agent in requesting and obtaining documents in 2018, and therefore their knowledge in 2018 is imputed to DTN.

What you need to know

The decision confirms that the time limit in section 53(3)(d) of the PPIP Act refers to awareness of the conduct, the subject of the application. The period for review under section 53 commences when the applicant for review first became aware of the conduct.  

The decision considers the principles applying to awareness in circumstances where an agent, in this case, a solicitor, is aware of the information connected to the respondent’s obligations under the PPIP Act.  

The decision confirms that the awareness must be more than a general awareness of whether the conduct would have contravened an information privacy principle, but requires an awareness of the relevant legal significance of the conduct within the meaning of section 53 of the PIPP Act.

Legislative background

Review requirements and jurisdiction

Section 53 Internal review by public sector agencies

Section 53(3)(d) application to be made within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application

Factual background

DTN was a police officer with the respondent until his medical discharge in 2012. In 2018, DTN engaged solicitors, Carroll & O’Dea, to undertake a workers’ compensation claim, and the solicitors made an application under the PPIP Act on behalf of DTN, seeking access to DTN’s personnel file, a 2012 medical report, and other documents. This information was produced to the solicitors in 2018 but they did not provide the documents to DTN until April 2019, after DTN asked for a copy of the materials produced. In September 2019, DTN made an application to the Commissioner of Police under section 53 of the PIPP Act, as DTN was concerned that the 2012 medical report contained false information. At the Tribunal proceedings, DTN asserted that the application under section 53 of the PIPP Act was made to the respondent less than six months after first receiving the document that allegedly contained false information.  The Commissioner of Police argued that DTN’s application for internal review was not made within the statutory time limit and could decline to deal with the application. The Commissioner of Police submitted that the solicitors acting for DTN were DTN’s agent, and that DTN ought to have known that when his solicitors made a request under the PIPP Act, that his medical file and injury management file would be provided to his solicitors.

Tribunal findings

The Tribunal (at [12]), considered the meaning of section 53 of the PPIP Act and stated:  

“The authorities in this tribunal are clear that the phrase ‘first became aware of the conduct the subject of the application’ in section 53(3)(d) refers to awareness of both the conduct itself and also the legal significance of the conduct.” 

The Tribunal considered the respondent’s arguments (at [21] and [22]) that DTN was aware in 2018 of the legal significance of the documents produced to DTN’s solicitors, as well as his appeal rights under the PIPP Act at all relevant times; and drew the Tribunal’s attention to the fact that the request made by DTN’s solicitors in 2018 was made under the PIPP Act.

In considering the meaning of ‘first became aware’ in section 53(3)(d) of the PPIP Act, the Tribunal (at [41]), outlined principles from court and tribunal authorities on the meaning of awareness within an agency and principal relationship:  

1. the phrase ‘first became aware of the conduct the subject of the application’ in section 53(3)(d) of the PIPP Act refers to the actual awareness of the relevant person (per, Department of Education and Training v EM [2011] NSWADTAP 4 at [14])(DEC v EM)
2. an agent’s knowledge or awareness can be attributed to a principal but (1) only knowledge that is material to the transaction or purpose for which the agent is acting, and (2) only in relation to knowledge obtained within the scope of the agent’s authority, and (3) only where there is a duty on the agent to communicate that information to the principal (per, Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) (2008) 225 FLR 1; [2008] WASC 239; and Almona Pty Ltd v Parklea Corporation Pty Ltd [2019] NSWSC 1868)
3. the awareness of the relevant person, for the purposes of section 53 of the PIPP Act, could include the awareness of an agent if the agent was properly authorised to act for the applicant at the relevant stages of the process (per, DEC v EM).

With respect to the circumstances involving DTN’s agent, the Tribunal (at [46]-[48]) found that:

• Carroll & O’Dea was not DTN’s agent for all purposes, but only DTN’s agent in 2018 in relation to a potential workers’ compensation claim; they were not engaged by DTN for the particular abilities and expertise relevantly to extend to possible contraventions of privacy principles under the PIPP Act
• No materials provided to the Tribunal suggest that Carroll & O’Dea were engaged to consider any claims or matters under the PIPP Act and there is no indication that, even if DTN was still aware of his appeal rights in 2018, that he engaged Carroll & O’Dea in 2018 in relation to any such rights.

The Tribunal (at [53]-[55]) confirmed that the awareness needed to concern the legal consequences, not just a general awareness:

“Apart from being aware of the conduct, the relevant person must be aware of the legal significance of the conduct (per Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129; Harris v Commercial Minerals Ltd (1995-96) 186 CLR 1; and DEC v EM). If DTN’s solicitor/agent, rather than DTN, was the relevant person in 2018, there is no basis to find that the agent was aware of the legal significance of the 2012 Report under the PIPP Act.  

It is one thing for Carroll & O’Dea to have received the report, it is another for them to have been aware of its legal significance under the PIPP Act.

DTN’s application under section 53 is founded upon the 2012 Report containing information that DTN claims is false. The legal significance of the 2012 Report is its possible connection to the respondent’s obligations under privacy laws.” 

Tribunal outcome

The Tribunal found that the applicant, DTN, first became aware of the alleged privacy breach in April 2019. As such, DTN’s application for internal review was made within the time limit in section 53(3)(d) of the PIPP Act. The Tribunal ordered the respondent to deal with DTN’s application under section 53 of the PIPP Act made by letter dated 28 September 2019.