AJE v Hawkesbury City Council
[2013] NSWADT 174
•02 August 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: AJE v Hawkesbury City Council [2013] NSWADT 174 Hearing dates: 24 October 2012, 7 December 2012 Decision date: 02 August 2013 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The Tribunal determines not to take any action on the matter.
Catchwords: Privacy - personal information - information protection principle - insufficient evidence Legislation Cited: Administrative Decisions Tribunal Act 1997
Privacy and Personal Information Protection Act 1998Cases Cited: Birdon Contracting Pty Limited v Hawkesbury City Council [2009] NSWLEC 85
Birdon Contracting Pty Limited v Hawkesbury City Council [2009] NSWLEC 1395
Department of Education and Training v ZR (No 2) (GD) [2009] NSWADTAP 44.
Diamond v Birdon Contracting Pty Limited & anor [2008] NSWLEC 302
GR v Director-General, Department of Housing (GD) [2004] NSWADTAP 26
JD v Department of Heath (GD) [2005] NSWADTAP 44
Rajski v Scitec Corporation Pty Ltd (unreported, NSWCA, 16 June 1986).Category: Principal judgment Parties: AJE (Applicant)
Hawkesbury City Council (Respondent)Representation: Counsel
S Nash (Respondent)
AJE (Applicant in person)
Marsdens Law Group (Respondent)
J McAteer, Deputy Privacy Commissioner
File Number(s): 123080
reasons for decision
GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): In these reasons the names of private individuals have been anonymised so as to preserve the privacy of their personal affairs. In these reasons the Applicant is referred to as AJE. The names of public servants involved in the performance of official functions are not anonymised.
This is an application made by the Applicant, AJE, under section 55(1) of the Privacy and Personal Information Protection Act 1998 ("the PPIP Act"), seeking external review of conduct of staff of the Respondent, Hawkesbury City Council ("the Council" or "the Respondent"). In August 2011 AJE made an application for internal review of that conduct under the PPIP Act. The Council conducted an internal review in relation to the conduct under section 53 of the PPIP Act. Its determination, dated 1 March 2012, was to take no further action on the matter. The Council's review found that AJE had not provided sufficient evidence to support his allegation that the Council had breached his privacy.
AJE was not satisfied with the findings of that review and he applied to the Tribunal for external review of the alleged conduct.
The Tribunal's task is to review the conduct that was the subject of the internal review request: JD v Department of Heath (GD) [2005] NSWADTAP 44). The review is confined in its scope by the initial request for internal review, reasonably construed: Department of Education and Training v ZR (No 2) (GD) [2009] NSWADTAP 44. The Tribunal has no jurisdiction to review conduct that was not the subject of the internal review application.
Background
There is a long and complicated history to the proceedings. AJE is dissatisfied with the process leading up to, the conduct of, and the outcome of proceedings in the Land and Environment Court. AJE made a complaint under the Council's Code of Conduct against the Council's Director of City Planning, Mr Owens, and Council's solicitor, Mr Griffiths.
AJE's application for internal review was lodged on 5 August 2011 by way of a statutory declaration sworn on that date. A further statutory declaration sworn on 7 September 2011 supported the application for internal review.
Mr Nash, Counsel for the Respondent, provided submissions in which he set out the following outline of the background to the matter:
There is a long and complicated history which gives some context to the present proceedings. As best as the Council can understand from the material served by [AJE] in these proceedings, [AJE] is and was dissatisfied with the process leading up to, and perhaps more importantly, the outcome of, 2 sets of proceedings in the Land and Environment Court, namely:
a. Birdon Contracting Pty Limited v Hawkesbury City Council [2009] NSWLEC 85 (Lapse Proceedings); and
b. Birdon Contracting Pty Limited v Hawkesbury City Council [2009] NSWLEC 1395 (Consent Proceedings).
The outcome of the Lapse Proceedings and the Consent Proceedings appears to be the reason why [AJE] made a complaint under the Council's Code of Conduct against the Council's Director of City Planning, Mr Owens, and Council's solicitor, Mr Griffiths (Conduct Complaints).
To understand the background further, on or about 11 November 2008, following an application made to the Council by Birdon Contracting Pty Limited under the Environmental Planning and Assessment Act 1979, s 96 (s 96 Application), Mr Owens prepared a report for the Council's consideration, being an environmental assessment report in respect of that application (Owens Report). The Owens Report had originally been reported to a Council meeting on 29 July 2008, however consideration of the report was deferred to 11 November 2008, to abide the outcome of legal proceedings commenced by [AJE] challenging the validity of the original development consent to which the s 96 Application related. Those legal proceedings were dismissed for 3 reasons, firstly, as [AJE] was an undischarged bankrupt, secondly, due to [AJE's] failure to pay outstanding costs orders against him and thirdly, the fact the proceedings were an abuse of process (Diamond v Birdon Contracting Pty Limited & anor [2008] NSWLEC 302).
The Owens Report recommended refusal of the s 96 Application, on the basis that the original development consent DA 0134/95, which was sought to be modified by the s 96 Application, had lapsed under the Environmental Planning and Assessment Act 1979, s 95(4).
Council duly resolved on 11 November 2008 to refuse the s 96 Application as recommended by Mr Owens in the Owens Report. Birdon Contracting Pty Limited appealed that decision to the Land and Environment Court (this being the subject of the Lapse Proceedings) in the Court's Class 1 jurisdiction. On 18 June 2009, the Court found in favour of Birdon Contracting Pty Limited, and held the original development consent had not lapsed and hence the Council (and the Court on appeal) was empowered to approve the s 96 Application, if that application merited approval.
About 2 months after the Lapse Proceedings were determined by the Court, the Council and Birdon Contracting Pty Limited agreed to the Class 1 appeal being disposed of via consent orders entered on 18 August 2009 (in the Consent Proceedings), on the basis that Birdon Contracting Pty Limited's appeal would be upheld and the s 96 Application would be approved subject to conditions.
[AJE] made the Conduct Complaints on 29 September 2009 by letter to the Council's General Manager, Mr Jackson. [AJE] made various allegations, and they are summarised in Mr Jackson's final conduct report (Conduct Report). During the period 29 September 2009 - 23 June 2011, numerous items of correspondence were exchanged between Mr Jackson and [AJE] in respect of [AJE's] complaints. The culmination of Mr Jackson's review of the complaints is contained in the Conduct Report, which dismissed the complaints as lacking merit.
Almost 3 years after the Owens Report had been published, and shortly after the draft conduct report had been supplied to [AJE], [AJE] sought, via his statutory declaration sworn on 5 August 2011, a review of certain conduct of the Council under (what was assumed to be) the Privacy and Personal Information Protection Act 1998, s 53.
The Respondent's contentions as to scope of the application
Mr Nash also asserted that the Respondent was unclear as to the nature of AJE's privacy complaints because he failed to particularise the conduct that he alleged was in breach of the PPIP Act. He submits that at best, the alleged objectionable "conduct" may be described as:
a. The making of (unspecified) false and misleading comments by Council's solicitor, Mr Griffiths, (unspecified) false and misleading statements by Mr Owens and the advice provided by Marsdens based on flawed instructions (due to the false and misleading nature of the Owens Report), in the Conduct Report; and
b. The inclusion of (unspecified) false and misleading information and defamatory comments in the Owens Report.
Mr Nash also asserted that the alleged conduct is not conduct reviewable under the PPIP Act. He submits that AJE's complaints relate to his criticisms of the role and contributions of Mr Owens, Mr Griffiths and Mr Jackson in the outcomes of the Land and Environment Court Lapse Proceedings and the Consent Proceedings and do not have anything to do with AJE's privacy at all.
Mr Nash further asserted that the numerous statutory declarations that AJE has served in these proceedings contain repetitive and irrelevant material and information, which does not advance any understanding of the "conduct", said to have been in breach of the PPIP Act. AJE's contentions constitute "collateral attacks" on the substance of the Conduct Report and the decisions of the Land and Environment Court in the Lapse Proceedings and the Consent Proceedings. The Tribunal is not an appropriate forum for the resolution of those contentions.
Mr Nash submits that the proceedings should therefore be dismissed.
The initial request for internal review
As noted above, the Tribunal's jurisdiction on review is confined in its scope by the initial request for internal review, reasonably construed. In light of the Respondent's contentions it is therefore necessary to consider the initial request. AJE's application for internal review was in statutory declarations dated 5 August 2011 and 7 September 2011.
The 5 August 2011 statutory declaration stated:
1. Under the Privacy Act I am making a formal application for a review of Council documents which are personal information relevant to myself and the ongoing situation relevant to Birdon/Finda Creek Quarry.
2, I say, there are special circumstances relevant to my personal involvement in the continuing cover-up by senior staff relevant to the proper enforcement of the LEC orders of 2005, the Council's Code of Conduct, the proper enforcement of the Environmental Planning Assessment Act and Council's Charter along with the proper enforcement of SHREP20 and the Water Act of 1912 and the previously valid RFI 1948 and the Soil Conservation Act of 1938.
There are also responsibilities under common law relevant to this situation.
3. The records that I wish to be had reviewed fall into three categories, each linked to the other.
4. The documents I wish reviewed specifically include, but are not limited to:
i. The General Manager Peter Jackson's draft review of the Code of Conduct complaint against Director City Planning, Mr M. Owens and Council's Solicitor, specifically Mr S. Griffiths.
Specifically, the false and misleading comments by Council's Solicitor Griffiths and the false and misleading statements by Matt Owens and the statements and legal advice provided by Marsden's relevant to the somewhat flawed instructions under the Code of Conduct by Peter Jackson.
Specifically, the instructions from Mr Jackson do not refer in any shape or form to the false and misleading nature of the report of 2008 given to HCC Counsellors under a Section 96 application by Birdon for Lot 2 628806 and not the Crown Land below which of course has no consent or approval under the EPAA.
It should be noted that my complaint was relevant to the EPAA specifically 283 relevant to false and misleading information.
It follows also that the Crimes Act 1900 also is applicable to this offence.
It should also be noted that there are orders of 2005 from the LEO signed by Council and others to the effect that all parties will abide by the laws of NSW and specifically mentions the EPAA.
These laws will of course include the Water Act of 1912, Soil Con 1938 and RFIA 1948 and the appropriate regulations relevant to consent prior to commencement.
As set out in previous correspondence to HCC and specifically the complaint to Mr Jackson, these Acts were materially ignored by Griffiths and Owens in their submissions to the LEC in both court cases. The court cases referred to are the appeal by Birdon and my failed application to the LEC prior to the rejection of HCC at the meeting of 2008.
ii. The next point that I wish reviewed under the Privacy Act is the Council Report of 2008 by Matt Owens. This report contains false and misleading information and defamatory comments relevant to the whole saga of illegal and unlawful consents by allegedly corrupt Council officers in the planning section and associated senior staff.
iii. Another document I wish reviewed is my legally appraised critique referred to in the bundle of documents presented to the court in the appeal proceedings by Birdon in 2008.
5. Attached to this stat dec when formally signed, are the following documents:
- An extract of corrupt conduct from the ICAC Act 1988.
- A document headed Crimes Act 1900 No. 40.
- An addendum which sets out the responsibilities of all parties relevant to this issue.
It is highly suggested that you consider the Council's Code of Conduct, Council's Charter and respectfully your responsibilities under the Protected Disclosures Act relevant to the proper considerations of this application.
Because of the ongoing cover-up by senior staff (and their solicitor) of the Tinda Creek Quarry which is operating without lawful consent for the Crown Land as stated in Marsdens' legal advice (words to the effect) there is no consent for the Crown Land I would advise you to properly protect yourself from any adverse harassment by senior staff.
6. Abbey, relevant to your recent letter and our phone conversation, I would ask you to consider the particular paragraph which refers to preliminary investigations/reports and I still request a copy of those.
And further to this I would suggest that the request we referred to was not about the Chris Jewel report, it was about the aforesaid preliminary investigations which I do not believe exist.
7. Abbey, there is an urgency relevant to this under the EPAA 124 relevant to corrupt conduct by Council which, if the general manager investigates properly, he will confirm.
As set out in the attached extract from the ICAC, corrupt conduct is established by the partial carrying out of duties by a Council officer (senior staff) in this case Owens and Council contractor Griffiths in not marshalling all the appropriate evidence and in fact rejecting the submission of evidence and the pressing of that evidence to justice Payne relevant to the lapsing of consent by illegal and unlawful commencement of Birdon of Tinda Creek.
A prudent general manager would have concluded by the evidence already presented to him that the case was deliberately sabotaged by Owens instructing improperly solicitor Griffith.
The general manager currently is not complying with Council's Code of Conduct and he has ignored the undertakings given by former general manager McCully and the recently deceased Mayor Rex Stubbs to independently investigation allegations of improper conduct and mismanagement and corruption relevant to the Birdon consent of 1996 and of course this is confirmed in correspondence from acting general manager Geoff Banting in the Council file specifically his letter of 5th March 2003.
Further to this there is a letter from ICAC which I have supplied to Council which states words to the effect that Council have agreed to independently investigate my complaints on Tinda Creek. This letter should be around 2003 or possibly 2004.
As I have suggested I will deliver a hard copy of this signed stat dec asap with the attachments referred to
In the interim to initiate the Section 15 request under the Privacy Act I am faxing you this unsigned stat dec.
Relevant to your perusal of my Section 15 request I wish to place a caveat on your investigation. That caveat if we can agree and cooperate, is that I am prepared to have you contact ..., a Council planner who I believe to be honest but I would request that you notify me prior to any discussions with him relevant to my complaint and that all questions and answers to him and from him be put in writing as recommended by HCC's Code of Conduct and in the alternative I be present during all discussions with him.
The documents referred to at paragraph 5 of the statutory declaration where provided as attachments to it.
The 7 September 2011 statutory declaration stated:
1. Could you please consider this stet dec as a formal complaint under tier one of HCC's Code of Complaint Handling,
2. Abbey, further to our recent conversation, could you now include Peter Jackson's review of my formal complaint against allegedly corrupt officer Matt Owens and allegedly incompetent Steven Griffith from Pikes in your considerations under the Privacy Act as previously set out.
3. Could you also specifically include the fraudulent and misleading statements by Steven Griffith and Matt Owens in their written responses to allegedly professional investigation by Peter Jackson into my complaints relevant to the Code of Conduct and Owens' false and misleading reports of 2008 which were also placed before the LEC in the recent case.
4. Your attention is also brought to the public interest in restoring the Water flows to Tinda Creek and the 20 years of corruption alleged by myself which endemic in the planning section of HCC as set out in my stat dec of 2003 previously referred to in correspondence and star decs to the GM who has failed to consider these issues and specifically but not limited to the recent complaint under the Code of Conduct.
5. Your attention again is brought to the need to protect yourself from any unjust repercussions and I strongly suggest that you consider all aspects of the Protected Disclosures Act.
6. I am making this stat dec in the public interest of restoring water flows to Tinda Creek and specifically I have been denied natural justice through Jackson's naive unprofessional and incompetent final report into my allegations against allegedly corrupt officer Owens and Griffith.
7. I bring your attention to the Orders signed by HCC solicitor Griffith of 9th September 2005 in the LEC where it was agreed that Council would properly monitor etc Tinda Creek and that they would comply with the laws of New South Wales and specifically the EPAA and the regulations.
Clearly it is manifestly unreasonable for Jackson to have unprofessionally considered my complaint and in essence, on my first reading of his final report either he is extremely naive or complicit in the alleged corruption relevant to the Tinda Creek file (inter alia).
I intend to speak to Peter and request a formal meeting to specifically discuss his failure to have the matter properly investigated specifically but not limited to his failure to comply with the Orders of 2005 to comply with the Code of Conduct (as set out in previous correspondence) and particularly his failure to address the false and misleading nature of my complaint under 283 of the EPAA relevant to the necessity to comply with the Code of Conduct by obtaining the full facts.
I Intend to sign this faxed stat dec in the next couple of days and I will detail the key issues in the immediate future relevant to the privacy application and the tier one complaint as set out above.
I look forward to your written response within the next 7 days.
Clarification of the initial request for internal review
When the matter first came before me for a planning meeting in May 2012 I directed that AJE file and serve material in which he identified the alleged privacy breaches that are the subject of these proceedings. AJE subsequently filed a statutory declaration sworn on 14 August 2012. He indicated that an annexure (Attachment 1) to that statutory declaration met that requirement.
AJE identified the alleged privacy breaches as follows:
S4 (5) Not Personal information if unsolicited
Council solicits information in advertisements and other places for comment. Interview with Mayor, GM & planner to discuss issues re L&E court case. I was invited to make further comment. On website 29/7/08, 11/11/08: Planning reports used later in L&E courts were knowingly inaccurate, incomplete, false and misleading. Ref S16 and S62
S8 Collection for lawful purpose
Council solicits information about DA and S96 advertisements and letters to objectors for comment.
Interviews with Mayor, GM and staff to discuss issues re Birdon Tinda Creek DA 34/195 non compliance.
Staging of various areas that resulted in the lapsing of DA consent On 19/1/99 or 19/1/01 for operating out of area.
Relevant to Designated Development Schedule 3, s 35 and 36 of the EP&AA without the consent of the Crown for the S96 application the development clearly was not the same development as the original development as set out in the November 1995 EIS.
Failure to obtain consent of the Department of Lands that is the owner of the quarry Crown Lands for a DA and S96 application in accordance with Mr Cook's 17 August 2009 letter to me.
Failure to obtain EP&A Act consent for use of Crown Land without which the quarry cannot operate lawfully operate relevant to the illegal placement of C800,000 tonnes of tailings on Crown Land as set out in the November 1995 EIS.
The Mayor and staff requested my complaint to be confirmed in writing,
S9 Directly from individual
NA
S10 Other requirements when collecting Info,
Failed to ensure confidentiality of my complaints relevant to HCC's Code of Conduct and published modified extracts to deliberately and knowingly mislead council and the public and L&E Court without allowing me to verify the accuracy and truthfulness of Council's reports contrary to the provisions of the. Privacy Act and procedural fairness.
If the report was accurate I would not be concerned.
S11 Purposes for use
Contrary to confidentiality requirements of HCC policies and the Privacy Act my complaints were used by Planning staff, GM as their employer to discredit me to avoid being held to account for negligence and maladministration that appears to be rampant in the Planning Department.
The short extracts from one ICAC letter and other ICAC letter to me given to Council verified an independent investigation into Tinda Creek as set out in acting GM Geoff Banting's 5 March 2003. The issues in the ICAC's letters were mischievously misrepresented to further discredit me contrary to the Privacy Act S 16 and S62.
Crown Lands Act The attached 17 August 2009 letter from the Department of Lands states that the Proposed License for a quarry at Colo Heights was sent to the applicant and has never been executed,. Hawkesbury City Council was given this letter in the L&E Court on 18 August 2009
Under the EP&A Act this quarry does not have Development consent for the use of the Crown Land below 15.24 metres for the placement of tailings as set out in the EIS of 1995 and consent of from Hawkesbury City Council December 1996 DA 134/95 or the L&E Court in 2009 Commissioner Brown. HCC should have taken action to issue a please explain on the operator.
Instead Hawkesbury City Council has allowed the quarry to operate illegally contrary to the EP&Act and the orders of the L&E Court 9/9/05, pars 5 and 6.
S12 Retention & security
My letters of complaint were not used for the purposes for which they were collected.
My letters of complaint later called my submissions by HCC staff were not shown to Council to justify their reports, but were deliberately intended to protect themselves and mislead Council, the public and later the L&E Court contrary to Council's code and policies of confidentiality and the Privacy Act.
My submissions were not shown to council to justify council's report that was deliberately intended to mislead the council and L&E Court.
This was a denial of procedural fairness I submit should require the council to substantiate its defence under the EP&A Act S283, Privacy Act S 16 and S62 as well as the Crimes Act 307 and Local Government Act S664, S665, S667, S669 and S671 - onus of proof rest with the accused.
S13 Info about personal information held by agencies
S14 Access to personal information held . ·
S15 Alteration of personal information
(a) accurate
Council refused my request to alter its reports despite the fact my critique gave them cogent information.
S16 Agency must check accuracy of personal information before use
Council has never afforded me procedural fairness before publishing incorrect personal information
Reference to Privacy NSW. There is no evidence to prove what was discussed or any verbal advice. Council must substantiate its claims.
Council did not give the opportunity to check accuracy of its reports before publication.
Council's reference to DA v Syd Uni.
When considered in the context of my application, the GA v The University of Sydney (2010) NSWADT precedent actually is in my favour when my concerns are impartially assessed. GA accepted the procedures enacted by the University. I reject the assumption HCC acted in compliance with its Codes of Conduct, the EP&A Act and orders of the L&E Court 9/9/05.
S17 Limit on use
(a)
My consent for publication of my complaints was never sought, nor granted by me.
(b)
The GM and council staff misused information to defend themselves instead of providing unbiased, frank and impartial reports.
(c)
I have been shot at and assaulted by associates of the quarry operator, received death threats, intimidation by the operator and harassed contrary to 17 (c) and consent condition 13 of the original DA 134/95.
All of this information was withheld from the councillors and misrepresented to the councillors and public on 29/7/08 and 11/11/08 and later the L&E Court in the Birdon appeals relevant to the fraudulent S96 DA and the appeal by Birdon for non payment of $46,000 S94 contributions to the RTA in accordance with Justice Lloyd's
A judgement liability for HCC to pay Birdon's appeal costs by Justice Payne was then corruptly traded for the Council Debt in lieu Burdon's $46,000 RTA debt under HCC's S94 policy.
To the best of my knowledge the $46,000 has never been paid to the RTA. The GM has refused to advise if this money has been paid, and again the GM mislead the Council in his confidential report 2009/2010.
S18 Limit on disclosure
Council has never sought permission to disclose alteration of information requested by council contrary to procedural fairness.
S19 Special restrictions on disclosure
NA
S20 General application of protection principles
(4) refers to S 15 amendment of personal info
S62 Corrupt disclosure and use of personal information by public sector officials
(1) A public sector official must not, otherwise than in connection with the lawful exercise of his or her official functions, intentionally disclose or use any personal information about another person to which the official has or had access in the exercise of his or her official functions.
Hawkesbury City Council staff have deliberately or otherwise misrepresented my submissions by:
Failing to include in their submissions to Council and the L&E Court all relevant information to avoid substantiating the Council's corporate structure of neutrality.
I also suggest it is in breach of the Copyright Act to misrepresent my documents.
See attached Statutory Declaration
The attached Statutory Declaration to which AJE referred elaborated on his complaints about the conduct of various officers of the Respondent, primarily in relation to proceedings before the Land and Environment Court.
The Respondent's response to AJE's clarification of the alleged privacy breaches
The Respondent submitted that most of the items that AJE referred to in the clarification set out above are beyond the jurisdiction of the Tribunal in these proceedings. This is said to be the case because the relevant "conduct" was not the subject of AJE's internal review request and/or because no privacy complaint has been raised or identified.
In this regard Mr Nash submitted:
a. Item "S8" of Attachment 1 - not the subject of [AJE's] internal review request; no privacy complaint raised;
b. Item "S10" of Attachment 1 - not the subject of [AJE's] internal review request (except for the allegation that his "complaints" were used to mislead Council, in respect of which there is no evidence [and in any event, there is evidence of Mr Jackson that Council did not mislead] and was simply complying with its legal obligations ...);
c. Item "S11" of Attachment 1 - not the subject of [AJE's] internal review request (except for the allegation that his "complaints" were used to mislead Council, in respect of which there is no evidence [and in any event, there is evidence of Mr Jackson that Council did not mislead] and was simply complying with its legal obligations ...); largely no privacy complaints raised;
d. Item "S12" of Attachment 1 - not the subject of [AJE's] internal review request (except for the allegation that his "complaints" were used to mislead Council, in respect of which there is no evidence [and in any event, there is evidence of Mr Jackson that Council did not mislead] and was simply complying with its legal obligations ...);
e. Item "S16" of Attachment 1 - not the subject of [AJE's] internal review request;
f. Item "S17" of Attachment 1 - not the subject of [AJE's] internal review request; largely no privacy complaints raised;
g. Item "S18" of Attachment 1 - not the subject of [AJE's] internal review request.
The Respondent conceded that the remaining matters that AJE raised are within the Tribunal's jurisdiction. In relation to those items Mr Nash submitted:
a. Item "S4(5)" of Attachment 1 - there is no evidence to support the submission that the Owens Report was knowingly inaccurate, incomplete, false and misleading (and in any event, Council's evidence is that the Owens Report was accurate, complete and truthful and was simply prepared to comply with legal obligations ...);
b. Item "S15" of Attachment 1 - there is no evidence to support the submission that the Owens Report was knowingly inaccurate, incomplete, false and misleading (and in any event, Council's evidence is that the Owens Report was accurate, complete and truthful and was simply prepared to comply with legal obligations ...);
c. Item "S62" of Attachment 1 - there is no evidence to support the submission that the Owens Report was knowingly inaccurate, incomplete, false and misleading (and in any event, Council's evidence is that the Owens Report was accurate, complete and truthful and was simply prepared to comply with legal obligations ...).
AJE's further clarification of the alleged privacy breaches
At the conclusion of the hearing on 24 October 2012, I made directions that AJE provide evidence that identified where in the Owens Report matters referring to AJE are factually incorrect and how those errors constitute a breach of his privacy.
In response to that direction AJE provided an affidavit dated 20 November 2012. In his affidavit AJE stated:
3. I only made one formal submission within the timeframe, the rest were complaints subject to confidentiality, of the EPAA requirement between 14/9/06 and 29/9/06.
4. The context of my allegations before the Tribunal are simply that the reports of Owens 29/7/08 and 11/11/08 were inaccurate, false and misleading and directly relevant to breaches of the Privacy Act, that Council had not properly checked the facts and I say Owens' reports of 29/7/08 and 11/11/08 were a litany of lies and specifically designed to defame Diamond, to slander Diamond, and to specifically attack my credibility as my complaints over a period of years were subject to confidentiality under all HCC's Codes of Conduct, Complaint Handling, Enforcement Policy and the Privacy Act.
5. ... the reports of Owens were fabricated to assist Birdon Contracting in the 'rollover' at the LEC in 2009 ... the reports were inaccurate, false and misleading as the consent had lapsed in either 19/1/99 or in the alternative 19/1/2001 and that most significantly there was no consent of Crown for the Section 96 application of July 2006, there was no EPAA approval for the use of the Crown land below 15.24 metres as set out in the title deed and without that EPAA consent the Quarry cannot lawfully operate.
6. ... the tribunal does have jurisdiction to review the material in Owens' reports of 29/7/08 and 11/11/08 relevant to the accuracy the aspect of whether it was up to date and relevant to whether it was false and misleading, specifically relevant to the use of my complaints which were subject to confidentiality under all of HCC's codes and the privacy act and most significantly, whether the material was accurate, and I say it was not accurate as set out in previous correspondence and this affidavit.
7. ... the tribunal has jurisdiction to review my application in that in my original application I specifically said that the material in Owens' reports 29/7/08 and 11/11/08 that in essence their reports were a fabrication and false and misleading and inaccurate. See the above paragraph relevant to corruption etc.
8. The reports of 29/7/08 and 11/11/08 at 0025 of Mr Jackson's affidavit, contained numerous extracts from my confidential complaints to HCC from pages 0034 through to 0051 of Mr Jackson's affidavit of 8/10/12 and those comments that follow were false and inaccurate.
All of these extracts from my confidential complaints to HCC were eviscerated or taken out of context and without the cross referencing ...
9. The key issues in my application under the Privacy Act are essentially that the reports of Owen 29/7/08 and 11/11/08 later handed to the LEC were fraudulent, false and misleading, inaccurate and out of date considering all of the following.
10. The public interest in this privacy issue relates directly to corruption, mismanagement, maladministration and negligence by HCC planning staff and all general managers in HCC who have specifically dealt with the Tinda Creek/Birdon Quarry complaints.
11. These issues include state fraud, failure to deal with complaints, cover-up and fraud by both Birdon Contracting and HCC planners ...
12. There are special circumstances in this privacy issue and there were special circumstances relevant to my complaints lodged with HCC. Relevant to HCC's privacy policy and specifically the paragraph relevant to the need to stop violence etc and [AJE] of course had been harassed by Birdon Contracting staff in front of HCC's Officer Hall and Owens.
13. The special circumstances included the fact that we had been harassed, assaulted, fire bombed stalked for years by various parties associated with the Quarry including employees of the Quarry and specifically I had been assaulted by the member of a biker gang ...
14. The next serious issue falsely reported in the reports of Owens 29/7/08 and 11/11/08 and later the LEC which were designed to attack my credibility and to slander and defame me contrary to all the principles of the Privacy Act and specifically to deny me the confidentiality guaranteed by all HCC's policies relevant to confidentially and fairness including:
--HCC's Code of Conduct
- HCC's Code of Complaint Handling
- HCC's Enforcement Policy
- HCC's Privacy Management Plan
Along with the Department of Local Government and Ombudsman Complaint Policy No. 9 which is now contained in the new Council Complaint Policy
15. The other serious fraud and misleading statements which were inaccurate of course in Mr Owens' reports, for all intents and purposes, covered up the total negligence of HCC planning staff relevant to the need for annual review of the annual report required by consent condition 33 of the original consent DA134/95.
16. The other more serious issues include state fraud through the failure to enforce consent condition 8 and to review on an annual basis the Section 94 contributions which were owed to the RTA and of course this was never done.
17. Another serious issue was the failure to lodge new plans under consent condition 4 which was covered up in all Council reports and only dealt with in a partial manner in Owens's fraudulent misleading report 29/7/08 and 11/11/08. ...
18. Tinda Creek has ceased to flow and this was falsely reported by Mr Owens contrary to the true fact that Mr Jewell stated categorically there were no water flows in Tinda Creek in his report to Council of 2007.
19. Birdon Contracting failed to supply annual reports and this was severely understated in Mr Owens' reports to Council and later he specifically misled the LEC full well knowing that there was no consent of the Crown for the application of July 2006 and he was fully aware that there was a title search provided by Diamond which, when considered with the EIS specifically the plan PS91E130 dated April 1996 that the Quarry could not operated relevant to the deposition of tailings (and extraction) without an EPAA approval by the Council for the use of the Crown land.
20. He knew that there was only an offer by Department of Lands for the making of an application (in the future) and as the application had already been made on July 2006, there was no authority from the Department of Lands relevant to the July 2006 application and this of course was fraudulently and inaccurately presented to HCC and later to a far lesser extent the LEC.
21. Further to this the application of July 2006 was fraudulent and misleading ...
22. Further to this the first and misleading application and the supporting documents from Unwelt/Jamieson/Birdon falsely referred to and area of land to the east of the original bypass ...
23. Relevant to the inaccurate and false and misleading statements in Mr Owens' reports, I bring all parties attention to my critique given to the general manager on 10/11/08 and referred to in Mr Jacksons' affidavit of 8/10/12 at .61 of his affidavit under the heading 'other matters'.
24. As at that time on 10/11/08, Mr Jackson was aware that there were numerous inaccuracies and false and misleading statements in Mr Owens' report of 29/7/08 and there had been several mayoral meetings with Mayor Bart Bassett and Mr Jackson at which Mr Jackson should, under HCC's Code of Conduct, taken notes as required by the Code.
25. [AJE] on the other hand had provided clear and cogent evidence to the effect that the Quarry consent had lapsed on 19/1/1999 or 19/1/2001 to the general manager and the mayor and I have pointed out in front of Mr Owens who attended the meeting dated 18/3/08 that the tailings needed to be placed under the original consent DA134/95 in the Crown land and at that meeting I provided the plans and marked on those plans the area for the placement of tailing (the Crown land) and brought to Mr Jackson's and Mr Owens' attention, the fact again, that there was no Crown consent for the application (the July 2006), there was no EPAA approval for the use of the Crown land and obviously without those approvals, the Quarry could not lawfully operate.
26. None of this information was brought to the attention of the full Council of HCC on the following date, 11/11/08.
27. There were basically two reasons for the reports of 29/7108 and 11/11/08. The first reason was set out in Mr Jackson's letter to [AJE] dated 4/9/07. In essence, the letter of Jackson 4/9/07 stated words to the effect that there would be a review of the file as a direct result of my complaints over the years, specifically since 2003.
28. This review was relevant to my continued complaints of maladministration and corruptions perpetrated by Council officers ...
29. This position is admitted by HCC Planning Officer Owens at 00247 and 00246 of Jacksons affidavit of 8/10/12.
30. The other alternative is that the purported Section 96 report of 29/7/08 and 11/11/08 were only relevant to one issue and that was that the consent had lapsed. Council in its deliberation is did not go any further than the fact that the consent had lapsed and failed to consider the other 20 reasons that the consent had lapsed and none of these were brought to the attention of the Council or the LEC through Owens' inaccurate reports and the failure of HCC to provide further evidence to the LEC relevant to lapsing, specifically the designated development aspect considering the lack of Crown consent etc.
...
The Respondent's response to AJE's further clarification of the alleged privacy breaches
Mr Nash provided further submissions in response to AJE's 20 November 2012 affidavit. He submitted that AJE has not identified any alleged factual inaccuracies in the Owens Reports insofar as they concern AJE, nor has AJE identified how any alleged "false and misleading" content of the Owens Reports breached his privacy. No particulars were supplied to support his assertions.
In relation to AJE's reference to his "critique" at paragraph [23] of his 20 November 2012 affidavit, Mr Nash notes that the "critique" examines areas of AJE's disagreement with the Owens Reports, and sets out the basis for AJE's claims that aspects of the Owens Reports were "false and misleading". However, Mr Nash submitted that AJE has not proven that any parts of the Owens Reports were "false and misleading" insofar as concerns his personal affairs and further, that the "critique" does not set out the basis for any privacy complaint.
In relation to AJE's contention that the Respondent "misused" his "confidential complaints" in such a way as to allegedly breach his "confidentiality" by referencing matters raised in the various documents he lodged with the Council following public notification of the section 96 Application, Mr Nash submitted that the contention was not the subject of AJE's internal review request. Accordingly it is submitted that the Tribunal has no jurisdiction to enquire into or make any findings in respect of that contention.
Mr Nash submitted that if the Respondent had not prepared the Owens Reports in the manner it did, and in particular, in the manner it identified, summarised and discussed the public submissions that had been lodged, including all of those made by AJE, the Council would have failed in its duty under the EPA Act. The Council was legally bound to demonstrate that the determination in respect of the section 96 Application was not infected with mala fides or bad faith, given that such matters had been raised by AJE in the documents he lodged with the Council during and after the formal public notification period for the section 96 Application.
Mr Nash submitted that AJE's contentions constitute "collateral attacks" on the substance of the Owens Reports and the decisions of the Land and Environment Court. He submits that the Tribunal is not an appropriate forum for the resolution of those contentions and that application for review should be rejected.
Discussion
As I have noted above, the scope of the Tribunal's review is confined in its scope by the initial request for internal review, reasonably construed and the Tribunal has no jurisdiction to review conduct that was not the subject of the internal review application.
The Respondent asserted that the nature of AJE's privacy complaints was unclear because he had failed to particularise the conduct that he alleged was in breach of the PPIP Act. I agree with that assertion. I have found myself in a similar position.
I have set out the attempts that were made to have AJE particularise his complaint. In addition to the filed material, further opportunity was given to AJE at the hearing on 7 December 2012. Notwithstanding the latitude that he was given, and the voluminous material that he has filed, I am not satisfied that he has particularise sufficiently any conduct that was the subject of his initial request for internal review that was in breach of the PPIP Act. Where he has identified conduct, he has not presented sufficient evidence to support his assertions.
I agree with the Respondent that the vast majority of the issues raised in AJE's statutory declaration sworn on 14 August 2012 were not the subject of his internal review request. Accordingly, the Tribunal has no jurisdiction to enquire into or make any findings in respect of those matters.
Of the remaining matters, AJE was given the opportunity to particularise and provide evidence in regard to any matters referring to AJE in the Owens Report that are said to be factually incorrect and in regard to how those alleged errors constitute a breach of his privacy.
AJE's response to the opportunity was his 20 November 2012 affidavit, as set out above.
I agree with the Respondent that AJE's 20 November 2012 affidavit did not identify or particularise any conduct that constitute a breach of his privacy. Nor has any of the other material that AJE has provided advanced those matters. He again failed to do so at the hearing of the matter.
I note that AJE is a litigant in person. The manner in which he has conducted this matter highlights the difficulties that often confront self-represented parties. It raises the question of the extent of the Tribunal's duty to self-represented parties.
The Tribunal's Appeal Panel dealt with that question in GR v Director-General, Department of Housing (GD) [2004] NSWADTAP 26. The Appeal Panel stated at paragraphs [13] to [22]:
13 GR asserts that he had no inkling that his medical evidence was not addressed to the issue that the Tribunal was required to consider (causation). Had he known it was insufficient, he would have put on better evidence. He said that he only found out that there was a problem with the evidence via the reasons for decision.
14 (He referred at hearing to a conversation he said he had with a Registry officer who told him to get a 'medical report'. There is no evidence before us on this matter, other than GR's assertion. We make no finding as to whether the conversation as described by GR took place.)
15 GR's objection raises the question of the extent of the Tribunal's duty to self-represented parties.
16 In New South Wales the leading statements as to the duty as it stands at common law are found in Rajski v Scitec Corporation Pty Ltd (unreported, NSWCA, 16 June 1986). Samuels JA said at 14:
'In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.'
17 Mahoney JA said at 27:
'Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done.'
18 There are more extensive statements of the duty to be found in other sources, such as the Guidelines issued by the Family Court, see now Re F: Litigants in Person Guidelines [2001] FamCA 348 (4 June 2001) at [6]-[8]. See also Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438, Secretary, Department of Health and Human Services v JWB and SMB [1992] HCA 15; (1992) 175 CLR 218; Nagy v Ryan [2003] SASC 37; Platcher v Joseph [2004] FCAFC 68; Guidelines for Barristers on Dealing with Self-Represented Litigants (NSW Bar Association, October 2001); Nicholson R 'Australian experience with self-represented litigants' (2003) 77 ALJ 820. The degree of intervention by the court or tribunal must not be so great as to put their impartiality at risk, but the boundaries of intervention are flexible. See further Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397 (NSW CA), per Kirby P; Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6.
19 Section 73 of the Tribunal Act refers to the procedural obligations of the Tribunal:
'73 Procedure of the Tribunal generally
(1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.
(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4) The Tribunal is to take such measures as are reasonably practicable:
(a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and
(b) if requested to do so--to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and
(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.
(5) The Tribunal:
(a) is to act as quickly as is practicable, and
(b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and
(c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and
(d) in the case of a hearing--may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and
(e) may require a document to be served outside the State, and
(f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and
(g) may dismiss at any stage any proceedings before it if the applicant withdraws the application to which the proceedings relate, and
(h) may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance.
(6) A judicial member may:
(a) hold a directions hearing in relation to any proceedings before the Tribunal, or
(b) authorise a non-judicial member, the Registrar or a Deputy Registrar to hold a directions hearing in relation to any proceedings before the Tribunal.'
20 The provision of particular relevance to this appeal is s 73(4). The questions raised are whether the Tribunal took such measures as were reasonably practicable:
(i) to ensure that GR understood the nature of the assertions made in the proceedings and the legal implications of those assertions (see s 73(4)(a)), and
(ii) to ensure that GR had the fullest opportunity practicable to be heard or otherwise have his submissions considered in the proceedings (see s 73(4)(b)).
21 The requirements bearing on the Tribunal are, arguably, stricter than those applying at common law.
22 This case is typical of cases that arise in the 'review' jurisdictions of the Tribunal. It involves a self-represented applicant applying for review - in this instance, of the conduct as distinct from a decision - of a government agency. The government agency is invariably represented, as it was in this case by counsel. GR's position essentially is that he did not understand that the general opinion given by his medical practitioner did not address the question of the precise causal connection between the disclosure in issue and an element, at least, of his present condition, and the further question of whether that condition in any event constituted 'psychological harm'. Causation is not an easy concept to grasp.
AJE has been given significant opportunities to present his case. On several occasions he was given the opportunity to particularise his complaint and to provide evidence in support of his assertions. Despite those opportunities he has failed to provide any basis for a finding that the Respondent's conduct was in breach of the PPIP Act.
Section 55(2) of the PPIP Act sets out the orders that the Tribunal may make on reviewing the conduct of a public sector agency. The Tribunal may make any one or more of the orders set out in the section or it may decide not to take any action on the matter. In the circumstances of this matter, no action is warranted.
Order
The Tribunal determines not to take any action on the matter.
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Decision last updated: 02 August 2013
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