Australia, July 25 -- New South Wales Land and Environment Court issued text of the following judgement on June 25:

1. By Notice of Appeal dated 28 January 2025 the Appellant, known as FZK in these reasons, appealed against the decision of the Tribunal of 6 January 2025 concerning a procedural timetable and dismissing an application regarding the Appellant's contention that the Respondent had failed to comply with a summons (the Decision). For the reasons set out below, we have decided:

1) that the Decision is an interlocutory decision;

2) leave to appeal is required;

3) leave to appeal is refused; and

4) the appeal is otherwise dismissed.

Background

2. The Appellant made an application for administrative review of the Respondent's decision to refuse to amend FZK's personal information pursuant to s 15 of the Privacy and Personal Information Protection Act 1998 (NSW) (the Privacy Act), which was due to be heard on 22 May 2025 (the substantive proceedings).

3. As part of the substantive proceedings, FZK applied for a summons to be issued to the Respondent and the Tribunal issued a summons (the Summons) ordering the Respondent to attend and produce to the Tribunal by 28 October 2024 the following documents:

"[1] 2017 version of SAP User/Operational Manual/Handbook/Guideline of FACS, or LAHC if it is different from FACS, and current version of DCJ (the Respondent) [the 2017 SAP Manual]

[2] The document should contain the information of list of personnel actions, action types for each of them, reasons for each type

[3] Other HR and Payroll documents, e.g. checklists/procedures about how, when and what's required to apply these terms in SAP."

4. On 6 November 2024, the Respondent produced the documents which it claimed were within its possession, custody or control and claimed not to be in a position to produce the 2017 SAP Manual because it was not in its possession, custody or control. The documents the Respondent produced were:

1) SAP Final Clearance Procedure; and

2) SAP Intention to Cease Duty Procedure.

5. FZK challenged the Respondent's claim that the 2017 SAP Manual could not be produced. On 8 November 2024, FZK alleged in an email to the Respondent's representative that the Respondent had not complied with the Summons and stated:

"I consent for the summons to be referred to a tribunal member per clause 34 of the NCAT Procedural Direction 2 for Summons.

Because the respondent clearly does not understand what does compliance mean and when it is required to raise objection.

Any discussion of 'final settlement' is pointless if the respondent considers 'it doesn't hold' is in compliance."

6. On 11 November 2024, FZK emailed the Tribunal, copying the Respondent's representative and attaching email correspondence, stating the following:

"The Respondent failed to produce the requested documents, SAP Manual, per Summons, but disagrees it is non-compliance (see attached), therefore, I apply for the Summons be referred to a tribunal member per clause 34 of NCAT Procedural Directions 2 for Summons.

Please extend the time in order 2 of 30/10/2024 to 20/11/2024 per Table of Registrar's Power Directions."

7. The request for an extension of time related to the timetable for the filing of evidence and submissions by the parties in the substantive proceedings.

8. An order was made on 15 November 2024, listing a hearing as follows:

"The matter is listed for directions and compliance with the summons to produce at 2:00pm on 17 December 2024 for 1 hour."

9. On 16 December 2024, FZK again wrote to the Tribunal with their proposed orders to be made at the hearing due to take place the following day. Those proposed orders sought to vacate the timetable made on 30 October 2024, vacate the hearing date for the substantive proceedings on 13 February 2025, sought leave to amend the summons so that it was to be addressed to "GovConnect", sought a direction to the Registrar to issue the amended summons and that the proceedings be listed for return of summons and further directions in the future.

10. For the purposes of the hearing on 17 December 2024, the Respondent relied upon an affidavit by Kimberly Tram, a payroll team leader employed in Shared Services and Customer Experience in the Corporate Services Division in the Department of Communities and Justice dated 13 December 2024.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1979b2c64594b47eb428a229)

Disclaimer: Curated by HT Syndication.