24 July 2018
12 min read
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Turnbull v Strange [2018] NSWCA 157
The Court of Appeal has refused to set aside a subpoena addressed to the Commissioner of Corrective Services NSW requesting disclosure of telephone recordings. In Turnbull v Strange [2018] NSWCA 157, the Court of Appeal found that the Privacy and Personal Information Act 1998 (NSW) (Act) did not prohibit the Commissioner from producing information in order to satisfy a subpoena.
Background
The respondent to the appeal commenced proceedings in the Supreme Court challenging a transfer of land made by a since deceased person (who had been in custody) to his wife. As part of those proceedings a subpoena was issued to the Commissioner requiring the disclosure of telephone conversations between the prisoner and his wife and son, recorded by Corrective Services NSW.
The Commissioner produced the information without objection, however, the executors and the deceased’s wife (Estate Parties) applied unsuccessfully for the subpoena to be set aside, arguing that the disclosure of the information would be contrary to the Act.
The context of the proceedings in the Supreme Court was an action in the District Court by the respondent to the appeal in which the damages for mental harm were claimed to have been wrongfully inflicted by the deceased. The respondent to the appeal was a compliance officer with the Office of Environment and Heritage and witnessed the shooting of his colleague by the deceased whilst investigating illegal land clearing on the deceased’s property. It was claimed in the Supreme Court that the transfer of the property was made with the intention of defrauding creditors.
Appeal
The issue on appeal was whether the subpoena should be set aside on that basis that it required the Commissioner to disclose personal information in breach of section 18 of the Act, or alternatively whether the Court should make an order for no access to the documents produced.
Section 18 of the Act states that, subject to certain exceptions, “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.” Corrective Services NSW is a ‘public sector agency’ for the purposes of the Act.
Reasoning
The Estate Parties’ first submission was that the subpoena exemption to section 18 of the Act contained in section 23(5)(c) of the Act should be read down so as to limit the exemption for the purpose of law enforcement or the protection of the public revenue only. Section 23(5)(c) of the Act provides that “A public sector agency (whether or not a law enforcement agency) is not required to comply with section 18 if the disclosure of the information concerned is authorised or required by subpoena or by search warrant or other statutory instrument.”
The Court of Appeal rejected this submission on the basis that the Estate Parties’ interpretation of section 23(5)(c) of the Act would either render section 23(5)(d) of the Act unnecessary or read sections 23(5)(c) and (d) conjunctively, whereas they are to be read disjunctively.
The Court of Appeal further acknowledged that the Commissioner’s production of information in answer to a subpoena would be protected by section 6 of the Act, which provides that the Act should not impinge upon the court’s exercise of a judicial function.
The Estate Parties’ second submission related to the operation of section 23(6) of the Act. Section 23(6) of the Act provides that “Nothing in subsection (5) requires a public sector agency to disclose personal information to another person or body if the agency is entitled to refuse to disclose the information in the absence of a subpoena, warrant or other lawful requirement.”
The Estate Parties argued that section 23(6) permitted the agency to refuse to disclose the information because it would be entitled to do that without a subpoena.
The Court of Appeal rejected this submission, noting that ‘there is no basis for concluding that it was intended to countermand the very provision with respect to which it is said to operate’.
As to what was the purpose of section 23(6), the Court of Appeal suggested that it was ‘inserted from an abundance of caution, to ensure that no one sought to give the Privacy Act a broader operation than was intended.’
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Turnbull v Strange [2018] NSWCA 157
CIVIL PROCEDURE — subpoenas — application to set aside – whether subpoena requiring public sector agency to disclose personal information should be set aside – Privacy and Personal Information Protection Act 1998 (NSW), ss.18, 23(6).
HUMAN RIGHTS – legislation – Privacy and Personal Information Protection Act 1998 (NSW) – meaning of “personal information” – whether recorded conversations “information… about an individual”.
HUMAN RIGHTS – legislation – Privacy and Personal Information Protection Act 1998 (NSW) – whether subpoena should be set aside on basis that it required disclosure of personal information by public sector agency.
WORDS AND PHRASES – “information or an opinion… about an individual” – Privacy and Personal Information Protection Act 1998 (NSW), s.4.
Director of Public Prosecutions (NSW) v Kmetyk [2018] NSWCA 156
COURTS – orders – reconciliation of differences between forms of orders entered on JusticeLink and pronounced in court and recorded in document placed on file signed by judge.
JUDICIAL REVIEW – jurisdictional error by District Court – appeal against sentence imposed by Local Court – whether District Court decision quashing conviction, re-convicting and imposing new sentence vitiated by jurisdictional error.
TRAFFIC LAW – statutory disqualification upon conviction for driving while disqualified.
Champion Homes Sales Pty Ltd v Commissioner for Fair Trading [2018] NSWCATOD 114
ADMINISTRATIVE REVIEW – Home Building – Disciplinary action – Where respondent imposed fine on applicant in respect of breaches of statutory warranty to exercise due care and skill – Whether different standards of liability should apply in proceedings for breach of warranty and in disciplinary proceedings.
Larsson v Commissioner of Police, NSW Police Force [2018] NSWCATAD 149
ADMINISTRATIVE LAW – refusal of permit to possess or use a prohibited weapon (silencer) - genuine reason – recreational/sporting activity - applicant must demonstrate that the activity requires the possession or use of the weapon – whether use of a silencer is required for the activity on the basis of hearing loss or other grounds - whether there is a duty to apply the Work Health and Safety Act 2011 when determining an application for a permit.
George Thomas Hotels (Campsie) Pty Ltd & Anor v Station House Campsie Pty Ltd & Ors [2018] NSWSC 916
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WORDS AND PHRASES – “Immediate vicinity”.
McKane v Commissioner of Corrective Services of New South Wales (No. 3) [2018] NSWSC 1060
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JURISDICTION – Supreme Court – scope of supervisory jurisdiction – decision did not deny applicant access to the High Court – Supreme Court Act 1970 (NSW) ss.23 and 69 – scope of judicial review jurisdiction.
CRIME – administration of prisons – New South Wales – ordinary managerial powers exercised by prison authorities are reviewable only for bad faith, improper purpose or legal unreasonableness.
Kang v Bishop (No 2) [2018] NSWSC 1073
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Kitoko v University of Technology Sydney [2018] NSWSC 1007
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Regulations and other miscellaneous instruments
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