Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 916
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2003/214
GENERAL ADMINISTRATIVE DIVISION ) Re GUY VINCENT JOHN FORSYTH Applicant
And
FEDERAL PRIVACY COMMISSIONER
Respondent
AndACT GOVERNMENT SOLICITOR
Party Joined
DECISION
Tribunal Mr M J Sassella, Senior Member Date17 September 2003
PlaceCanberra
Decision The tribunal extends the time within which the applicant could apply to the tribunal for review of the respondent’s determination to 6 June 2003.
The tribunal makes the ACT Government Solicitor a party to the proceeding.
...............................................
Senior Member
CATCHWORDS
EXTENSION OF TIME – whether applicant had satisfactory explanation for delay in applying for review – whether applicant’s case has merit
JOINDER OF PARTY – whether party seeking to be added has interests affected by decision – whether party seeking to be added can materially assist the tribunal in its deliberations
Administrative Appeals Tribunal Act 1975 ss 27(1), 29(2)(a), (7), 30(1A), 40(1A)
Administrative Appeals Tribunal Regulations 1976 regulation 6(1)
Privacy Act 1988 ss 52(1)(b)(iii), (3), 61
Australian Broadcasting Tribunal; Ex parte Hardiman, Re (1980) 29 ALR 289
Control Investments Pty Ltd v Australian Broadcasting Tribunal (1980) 50 FLR 1
Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315
New Broadcasting Ltd v Australian Broadcasting Tribunal, Re (1987) 12 ALD 1
Penola High School and Geographical Indications Committee, Re (2000) 63 ALD 305
REASONS FOR DECISION
17 September 2003 Mr M J Sassella, Senior Member APPLICATION
1. The applicant, Mr Guy John Vincent Forsyth, applied to the Administrative Appeals Tribunal (“the tribunal”) on 6 June 2003 for review of Complaint Determination No 1 of 2003 (“the determination”) issued on 2 April 2003 by the Federal Privacy Commissioner (“the respondent”).
HEARING
2. The tribunal convened a hearing in Canberra on 16 September 2003 to consider two matters. First, the applicant’s application to the tribunal was lodged after the date by which it should have been received by the tribunal in accordance with s 29(2)(a) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”)[1]. Second, the determination found that an officer within the ACT Government Solicitor’s Office (“the ACTGS”) had done an act that was an interference with the privacy of the applicant and determined that the applicant should be paid $2643 in compensation by the ACTGS. The ACTGS had applied to the tribunal on 14 July 2003 to be made a party to the proceeding in accordance with s 30(1A) of the AAT Act.
[1] the hearing to decide (i) whether an extension of time was in order for Mr Forsyth and (ii) whether the ACTGS was to be joined as a party if an extension of time was granted Mr Forsyth represented himself. Mr K Y Sim of the ACTGS represented that body. Mr A Markus of the Australian Government Solicitor’s Office represented the Privacy Commissioner.
EXTENSION OF TIME
4. The tribunal noted advice from Mr Markus that the respondent was not objecting to a grant of an extension of time to Mr Forsyth. The tribunal proceeded to satisfy itself that an extension should be granted consonant with the principles enumerated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315. The tribunal made the following findings:
(a)The applicant had a reasonable excuse for delay in applying to the tribunal. He received the determination on 7 April 2003. He queried how to have it reviewed on 9 April 2003 by sending an email message to the respondent. On 22 April 2003 the respondent answered by telling the applicant to appeal to the Federal Magistrates’ Court. On 20 May 2003, 28 days later, the applicant lodged an appeal with the Federal Magistrates’ Court. On 23 May 2003 the Australian Government Solicitor wrote to advise the applicant that he should have appealed to the tribunal rather than the Magistrates’ Court. On 6 June 2003 Mr Forsyth appealed to the tribunal. The tribunal finds that Mr Forsyth acted promptly at all times to pursue his appeal rights, albeit in the wrong direction through no fault of his own.
(b)The tribunal finds that, by approaching the respondent and by appealing to the Magistrates’ Court, Mr Forsyth consistently signified his dissatisfaction with the determination of the respondent and consistently agitated the matter according to advice.
(c)The tribunal finds, on advice from Mr Markus, that no prejudice would accrue to the Privacy Commissioner from the grant of an extension of time. This is unsurprising given the short period of delay involved. The tribunal finds that this would be the case also if the ACTGS is added as a party. Nothing to the contrary has been put to the tribunal.
(d)The tribunal finds that Mr Forsyth has an arguable case on the merits. There is little if any authority regarding the proper exercise of the powers of the Privacy Commissioner under s 52(3) of the Privacy Act 1988 (“the Privacy Act”)[2]. Arguably, the respondent’s decision to impose a discount affecting the applicant’s out-of-pocket expenses was vulnerable. It was not suggested to the tribunal that there was any demonstrable want of merit in the applicant’s case.
[2] tribunal therefore granted an extension of time to the applicant in accordance with s 29(7) of the AAT Act to permit him until 6 June 2003 in order to lodge an application for review with the tribunal.
JOINDER OF PARTY
5. The tribunal has the power to add a party to a proceeding in accordance with s 30(1A) of the AAT Act:
Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding.
6. The tribunal finds that the ACTGS, a person in accordance with s 27(1) of the AAT Act, applied in writing to the tribunal on 14 July 2003 to be made a party to Mr Forsyth’s application. A document, Form 5, completed in accordance with regulation 6(1) of the Administrative Appeals Tribunal Regulations 1976[3], was on the tribunal’s file as lodged by the ACTGS for this purpose.
[3] essence Mr Sim argued that the ACTGS was a “person whose interests are affected by the decision” on the basis that the obligation to pay any compensation as determined by the respondent, or by the tribunal in the current application, falls on the ACTGS. He cited the decision in Control Investments Pty Ltd v Australian Broadcasting Tribunal (1980) 50 FLR 1 as authority.
8. Mr Markus advised that the respondent proposed taking no active part in the tribunal proceedings on the basis of the principles advanced by the High Court in Re Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 29 ALR 289, 306. The Privacy Commissioner would submit to any order of the tribunal. Mr Markus also advised that the respondent favoured the addition of the ACTGS as a party as it would be the appropriate person to take the active role of assisting the tribunal in its deliberations on the application.
9. Mr Forsyth objected to the ACTGS being added as a party. His arguments were presented in an impressive and lucid fashion. These were:
· That the decision as to the recovery of the applicant’s costs was made by the Privacy Commissioner who should therefore be the only other party to the proceeding.
· The ACTGS adds no value if added as a party. It was said to be interested only if the decision on recoverable costs was adverse.
· The ACTGS made a commercial decision to accept the Privacy Commissioner’s determination and not to appeal it in the ACTGS’s own right. The ACTGS now wished to use Mr Forsyth’s application to “hijack the whole determination”.
· The decision in Hardiman (above) has limited application in this proceeding. The decision in Re New Broadcasting Ltd v Australian Broadcasting Tribunal (1987) 12 ALD 1 applied to permit the respondent to be an active party in the proceedings and to “adduce evidence, question evidence and present substantive submissions”, especially in relation to a limited matter such as recoverable costs.
· The ACTGS represented no interests such that it may be of assistance to the tribunal. It does not represent any public interest or any consumer rights interest, for example. Its sole interest was to avoid an adverse decision by the tribunal.
· The ACTGS wished to challenge the entire determination, not just the decision on recoverable costs.
· Mr Forsyth’s sole interest in appealing is to challenge the Privacy Commissioner’s determination to allow him only 20% of his actual costs on the basis of presumption and without evidence.
· The tribunal in RePenola High School and Geographical Indications Committee (2000) 63 ALD 305 permitted the agency under review to take an active role.
In later discussion the tribunal understood Mr Forsyth to make the following point regarding Hardiman (above). Whereas that case might apply where an appeal is to a court against the decision of a quasi-judicial body, where as here the appeal is to a tribunal against the decision of a quasi-judicial body it does not apply.
findings regarding joinder
10. The tribunal was impressed by the work Mr Forsyth had done to present his arguments on this matter and by the clarity of his presentation. It is not an easy matter for an individual to present his (or her) own case before the tribunal and Mr Forsyth coped remarkably well. However, in the tribunal’s view there can be few interests more clearly affected than those of a party who stands to lose financially if a decision made by the tribunal goes in a certain way. The tribunal has therefore decided that the ACTGS is to be added as a party. However, the tribunal wishes to make the following comments in response to the arguments advanced by Mr Forsyth.
11. Mr Forsyth was correct in stating that the respondent is in the best position to explain how it decided to discount his recoverable costs in the way it did in the determination. To that end it would be feasible to require an officer from the respondent’s office to give evidence if Mr Forsyth or the tribunal were to require this. A summons could be issued under s 40(1A) of the AAT Act. However, the focus of the tribunal’s attention in the hearing on the merits will be on the decision itself as represented in the determination. The hearing is a hearing de novo on the merits and the tribunal is not confined merely to assessing whether the decision under review was justified on the material before the decision-maker.
12. The Hardiman decision (above) as a decision of the High Court commands considerable respect from the tribunal. The other decisions in New Broadcasting (above) and Penola High School (above), where the tribunal permitted, or required, a more active role for the agency were delivered in circumstances where there would be no other party able to assist the tribunal in relation to the particular matters before it if these parties were not to assist. That is not the case here. The considerations influencing the respondent in the instant case were clearly expressed in the determination. The ACTGS, if added as a party, is equipped to address those and any other relevant matters. It has expertise in the conduct of litigation and can provide witnesses if the circumstances surrounding the established interference with Mr Forsyth’s privacy need to be considered.
13. The ACTGS cannot challenge the entire determination if made a party. Section 61 of the Privacy Act establishes the tribunal’s jurisdiction as follows:
Review of determinations regarding compensation and expenses
61. (1) Application may be made to the Administrative Appeals Tribunal for review of:
(a) a declaration of the kind referred to in subparagraph 52(1)(b)(iii) or subsection 52(3) that is included in a determination to which this Division applies; or
(b) a decision of the Commissioner refusing to include such a declaration in a determination to which this Division applies.
(2) An agency, or the principal executive of an agency, may not apply for review without the permission of the Minister.
(3) In exercising powers in relation to an application under subsection (1), the Tribunal must be constituted by a presidential member who is a Judge and 2 other members who are not Judges. This subsection has effect subject to subsection 21(1A) of the Administrative Appeals Tribunal Act 1975 .
(4) Terms used in subsection (3) that are also used in the Administrative Appeals Tribunal Act 1975 have the same meanings as in that Act.
14. The references to s 52(1)(b)(iii) and (3) of the Privacy Act mean that the only matters within a determination that the tribunal can affirm, vary, set aside or remit under s 43 of the AAT Act are:
· A declaration that the complainant is entitled to a specified amount by way of compensation for any loss or damage suffered by reason of the act or practice the subject of the complaint; or
· A declaration, as occurred here, that the complainant is entitled to a specified amount to reimburse the complainant for expenses reasonably incurred by the complainant in connection with the making of the complaint and the investigation of the complaint.
These matters do not extend to the Privacy Commissioner’s decision that there has been an interference with privacy.
15. The tribunal therefore concluded that Mr Forsyth’s submissions were not sufficient to displace the clear pecuniary interest of the ACTGS in the conduct and outcome of the proceedings.
CONCLUSION
16. The tribunal has therefore decided (i) to permit Mr Forsyth his extension of time for applying to the tribunal for review of aspects of the respondent’s determination and (ii) to permit the ACTGS to be added as a party to the proceedings.
DECISION
17. The tribunal extends the time within which the applicant could apply to the tribunal for review of the respondent’s determination to 6 June 2003.
18. The tribunal makes the ACT Government Solicitor a party to the proceeding.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member
Signed: .......................................................................................
AssociateDate of hearing 16 September 2003
Date of decision 17 September 2003
Counsel for the applicant Self-represented
Counsel for the respondent Mr A Markus
Solicitor for the respondent Australian Government Solicitor
Counsel for party joined Mr K Y Sim
Solicitor for party joined ACT Government SolicitorDetails
- AGLC
- Forsyth and Anor and Act Government Solicitor [2003] AATA 916
- Case
- [2003] AATA 916
- Decision Date
CaseChat Overview and Summary
The applicants, Forsyth and Anor, sought review of a determination by the respondent, the ACT Government Solicitor, under the Privacy Act 1988. They applied for an extension of time to lodge their application for review, as well as the addition of the ACT Government Solicitor as a party to the proceedings. The Administrative Appeals Tribunal (AAT) was asked to decide on the merits of the extension application and the propriety of joining the additional party.
The applicants needed to demonstrate a satisfactory explanation for the delay in applying for review, as well as a case with sufficient merit to warrant the tribunal's intervention. The AAT also had to consider whether the ACT Government Solicitor had interests affected by the decision and could materially assist the tribunal in its deliberations. These considerations were guided by statutory provisions and relevant case law, including Australian Broadcasting Tribunal; Ex parte Hardiman, Re, Control Investments Pty Ltd v Australian Broadcasting Tribunal, New Broadcasting Ltd v Australian Broadcasting Tribunal, Re, and Penola High School and Geographical Indications Committee, Re.
The tribunal found that the applicants had provided a satisfactory explanation for the delay and that their case had sufficient merit to warrant an extension of time. The tribunal also concluded that the ACT Government Solicitor had interests affected by the decision and could materially assist in its deliberations, warranting their inclusion as a party to the proceedings. Consequently, the tribunal extended the time within which the applicants could apply for review to 6 June 2003 and added the ACT Government Solicitor as a party to the proceeding.
The tribunal's final orders were that the time within which the applicants could apply for review of the respondent’s determination was extended to 6 June 2003, and the ACT Government Solicitor was made a party to the proceeding.Orders
Orders of the court
The tribunal extends the time within which the applicant could apply to the tribunal for review of the respondent’s determination to 6 June 2003.
The tribunal makes the ACT Government Solicitor a party to the proceeding.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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