AQL v NSW Trustee and Guardian - [2014] NSWCATAD 116

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: AQL v NSW Trustee and Guardian [2014] NSWCATAD 116
Hearing dates: 18 December 2013
Decision date: 19 August 2014
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Higgins, Principal Member
Decision:
1. Subject to the applicant providing the respondent, within 28 working days, a list of amendments, in accordance with the requirements of s 15 of the PPIP Act, to his personal information in the Review Report, the respondent's internal review of its conduct in this regard is set aside and remitted for reconsideration under para 63(3)(d) of the Administrative Decisions Review Act 1997 (formerly 63(3)(d) of the Administrative Decisions Tribunal Act 1997).
2. The Tribunal otherwise determines to take no further action in this matter, pursuant to subs 55(3) of the Privacy and Personal Information Protection Act 1998.

Catchwords: Administrative Review - privacy - personal information - whether personal information excluded by reason of being information or opinion about an individual's suitability for appointment - review of conduct of government agency - alleged breach of the collection use and disclosure information protection principles - unsolicited information
Legislation Cited: Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Freedom of Information Act 1989 (repealed)
NSW Trustee and Guardian Act 2009
Public Sector Employment and Management Act 2002
Privacy and Personal Information Protection Act 1998
Cases Cited: AF v Healthquest [2011] NSWADT 99
AF v Minster for Health [2012] NSWADTAP 16
AFC v Sydney Children's Hospital Speciality Network [2012] NSWADT 189
ARC v Northern NSW Local Health District [2014] NSWCATAD109
Department of Education & Training v PN [2006] NSWADTAP 66
Department of Education and Communities v VK (GD) [2011] NSWADTAP 61
EY v Department of Corrective Services [2009] NSWADTAP 25
MT v Department of Education and Training [2004] NSWADT 194
NK v Northern Sydney Central Coast Area Health Service [2010] NSWADT 258
PN v Department of Education and Training (GD) [2010] NSWADTAP 59
UH v Department of Justice & Attorney General [2011] NSWADT 49
Vice-Chancellor Macquarie University v FM [2005] NSWCA 192
VK v Department of Education & Training (No3) [2011] NSWADT 168
Y v Director General, Department of Education & Training [2001] NSWADT 149
ZR v NSW Department of Education & Training [2009] NSWADTAP 69
Category: Principal judgment
Parties: AQL (Applicant)
NSW Trustee and Guardian (Respondent)
Representation: AQL (Applicant in person)
Crown Solicitor (Respondent)

File Number(s): 133140
Publication restriction: Pursuant to Section 75 (2) of the Administrative Decision Tribunal Act 1997 the name of the applicant is not to be published.

reasons for decision

Introduction

The applicant seeks review of conduct of the respondent agency, the NSW Trustee and Guardian, which he asserts to be a contravention of an information protection principle, under the Privacy and Personal Information Protection Act 1998 (PPIP Act), in regard to the collection, use, accuracy and disclosure of his personal information.

To preserve the privacy of the applicant the Tribunal has a policy to anonymise the name of applicant's in matters brought…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NSWCATAD 116
Decision Date: 19 August 2014

CaseChat Overview and Summary

The Applicant in this case, AQL, sought judicial review of a decision by the NSW Trustee and Guardian. The Applicant alleged that the Respondent, in compiling a Review Report, had breached the collection, use and disclosure information protection principles by collecting and disclosing personal information without their consent. The Applicant also argued that the information collected was not personal information within the meaning of the Privacy and Personal Information Protection Act 1998 as it was information or opinion about their suitability for appointment. The matter was heard by the Administrative Appeals Tribunal (AAT). The legal issues before the AAT were whether the information collected was personal information and, if so, whether the collection and disclosure of that information was a breach of the information protection principles. The AAT found that the information collected was personal information as it related to the Applicant's personal attributes and was collected for the purpose of assessing their suitability for appointment. However, the AAT also found that the collection and disclosure of that information was not a breach of the information protection principles as the collection was unsolicited and the disclosure was necessary for the purpose of the review. The AAT set aside the Respondent's internal review of its conduct and remitted the matter for reconsideration, subject to the Applicant providing a list of amendments to their personal information in the Review Report. The AAT otherwise determined to take no further action in the matter.

Orders

Orders of the court

1. Subject to the applicant providing the respondent, within 28 working days, a list of amendments, in accordance with the requirements of s 15 of the PPIP Act, to his personal information in the Review Report, the respondent's internal review of its conduct in this regard is set aside and remitted for reconsideration under para 63(3)(d) of the Administrative Decisions Review Act 1997 (formerly 63(3)(d) of the Administrative Decisions Tribunal Act 1997).

2. The Tribunal otherwise determines to take no further action in this matter, pursuant to subs 55(3) of the Privacy and Personal Information Protection Act 1998.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	AQL v NSW Trustee and Guardian [2014] NSWCATAD 116
Hearing dates:	18 December 2013
Decision date:	19 August 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Principal Member
Decision:	1. Subject to the applicant providing the respondent, within 28 working days, a list of amendments, in accordance with the requirements of s 15 of the PPIP Act, to his personal information in the Review Report, the respondent's internal review of its conduct in this regard is set aside and remitted for reconsideration under para 63(3)(d) of the Administrative Decisions Review Act 1997 (formerly 63(3)(d) of the Administrative Decisions Tribunal Act 1997). 2. The Tribunal otherwise determines to take no further action in this matter, pursuant to subs 55(3) of the Privacy and Personal Information Protection Act 1998.
Catchwords:	Administrative Review - privacy - personal information - whether personal information excluded by reason of being information or opinion about an individual's suitability for appointment - review of conduct of government agency - alleged breach of the collection use and disclosure information protection principles - unsolicited information
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Freedom of Information Act 1989 (repealed) NSW Trustee and Guardian Act 2009 Public Sector Employment and Management Act 2002 Privacy and Personal Information Protection Act 1998
Cases Cited:	AF v Healthquest [2011] NSWADT 99 AF v Minster for Health [2012] NSWADTAP 16 AFC v Sydney Children's Hospital Speciality Network [2012] NSWADT 189 ARC v Northern NSW Local Health District [2014] NSWCATAD109 Department of Education & Training v PN [2006] NSWADTAP 66 Department of Education and Communities v VK (GD) [2011] NSWADTAP 61 EY v Department of Corrective Services [2009] NSWADTAP 25 MT v Department of Education and Training [2004] NSWADT 194 NK v Northern Sydney Central Coast Area Health Service [2010] NSWADT 258 PN v Department of Education and Training (GD) [2010] NSWADTAP 59 UH v Department of Justice & Attorney General [2011] NSWADT 49 Vice-Chancellor Macquarie University v FM [2005] NSWCA 192 VK v Department of Education & Training (No3) [2011] NSWADT 168 Y v Director General, Department of Education & Training [2001] NSWADT 149 ZR v NSW Department of Education & Training [2009] NSWADTAP 69
Category:	Principal judgment
Parties:	AQL (Applicant) NSW Trustee and Guardian (Respondent)
Representation:	AQL (Applicant in person) Crown Solicitor (Respondent)
File Number(s):	133140
Publication restriction:	Pursuant to Section 75 (2) of the Administrative Decision Tribunal Act 1997 the name of the applicant is not to be published.