BDK v Department of Education and Communities

[2014] NSWCATAD 186

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BDK v Department of Education and Communities [2014] NSWCATAD 186
Hearing dates:	On the papers
Decision date:	03 November 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N Isenberg, Senior Member
Decision:	The applicant's application for review is dismissed under s.55(1)(b) of the Civil and Administrative Tribunal Act 2013
Catchwords:	Alleged privacy breaches - numerous complaints - multiple reviews - proceedings frivolous or vexatious
Legislation Cited:	HYPERLINK " Privacy and Personal Information Protection Act 1998 Civil and Administrative Tribunal Act 2013 Administrative Decisions Tribunal Act 1997
Cases Cited:	General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Category:	Principal judgment
Parties:	"BDK": applicant Department of Education and Communities: Respondent
Representation:	BDK (Applicant in person) Crown Solicitors Office (Respondent)
File Number(s):	133369

reasons for decision

1. The Applicant seeks review of the conduct of the Respondent, a public sector agency, pursuant to s.55 of the Privacy and Personal Information Protection Act 1998 ('PPIP Act').

1. The Applicant alleges that the Respondent has contravened most of the information protection principles ('IPPs'), as set out in the PPIP Act.

BACKGROUND

1. This background is largely extracted from the Respondent's submissions and, as far as I could see, there was no substantive dispute about the history set out there.

1. The applicant's grandson, L, attended a state school ('the School'). On 9 February 2009, following reports from secretarial staff at the School that the applicant's daughter, Mrs K, had telephoned the School on a number of occasions that morning advising that L was suicidal, and, concerned that L was at risk of harm, the then Principal, ('the Principal'), reported her own concerns to the relevant authorities, as required under child protection law. Police attended Mrs K's home later that day.

1. The applicant and Mrs K complained about the conduct of the Principal and the School in relation to those events, in particular, that the Principal had contacted the Department of Community Services and the police. They attended meetings at the School on 10 and 16 February 2009.

1. Mrs K also wrote numerous letters to the then School Education Director ('the SE Director'), who arranged for the complaints to be investigated by the relieving School Development Officer ('the SDO'). An investigation was conducted during which Mrs K, the applicant and staff at the School were interviewed. Twenty complaints were addressed by the SE Director in a response sent to Mrs K dated 18 March 2009.

1. Mrs K was not satisfied with the response and a review was conducted by the then Regional Director, Illawarra and South East Region, ('the Regional Director'), who had a meeting with Mrs K and the applicant on 3 April 2009. Numerous submissions and correspondence were received from each of them before a determination was made on 30 April 2009 that the SDO's investigation had been thorough.

The Review and the Report

1. Both Mrs K and the applicant made further representations to the Minister, amongst others, expressing dissatisfaction with the Regional Director's determinations. The Deputy Director-General Schools requested the new Regional Director, Illawarra and South Eastern Region ('the new Regional Director') and the Director, School and Regional Policy, (together, "the Reviewers") to undertake a review/investigate. The Reviewers met Mrs K and the applicant on 31 July 2009 and on 3 August 2009, and invited them to make submissions. Both Mrs K and the applicant made a number of complaints and submissions.

1. Among those complaints was a letter dated 14 August 2009 jointly written by Mr and Mrs K and the applicant objecting to a letter of 10 August 2009 in which the new Regional Director had noted a "level of conflict between your family and some staff at the School". On 19 August 2009, the applicant wrote to the new Regional Director raising the issues of "conflict" and who comprised the "K family" in the context of the letter.

1. Mr and Mrs K's attempt to have the Ombudsman intervene in the investigation was unsuccessful. The Reviewers provided their report on 26 October 2009 ('the Report'), finding that the Regional Director's determinations were procedurally fair and his findings reasonable and consistent with the evidence.

1. It is unclear to what extent Mr K continued to be part of the dispute with the Respondent but it is clear that Mrs K and her mother, the applicant were the main protagonists, sometimes together, and sometimes independently.

After the Report

1. On 2 November 2009, the Ombudsman again declined to intervene finding the Report to be "thorough and procedurally sound" and the restrictions on contact between the K family and the School "appropriate".

1. From 9 February 2009 to 9 August 2010, Mrs K and the applicant each made multiple complaints both to the Principal and the SE Director. The complaints were often made on a daily basis, and often repeated previous complaints and amounted to several hundred pages of correspondence. The Principal's contact with Mrs K were said to have led to complaint of a workplace injury, that ultimately led the SE Director to permanently remove the Principal from the School on 9 August 2010. The applicant disputes this, but ultimately nothing turns on whether or not the Principal suffered a workplace injury.

1. In May 2011, the Ombudsman again declined to intervene despite the request of Mrs K's psychologist who also unsuccessfully asked the Minister to intervene.

1. On 29 August 2011, a document entitled "[Mrs K]: communication protocol" was distributed by the respondent. The document contains a script to assist the respondent's staff in dealing with phone calls from both Mrs K and also the applicant.

1. In August 2011, the Minister's Office advised Mrs K that any further complaints from her or her family members or advocates would be placed on file and not responded to.

1. In 2012, Mrs K made a further attempt to overturn the Report in a series of privacy requests purportedly under s.15 PPIP Act, made directly to the Principal. Those requests were said to have led to an APVO being sought on 18 October 2012 and further complaints relating to the making of that application, including a request under s.15 PPIP Act to amend the APVO application. The APVO application was subsequently withdrawn, upon Mrs K giving an undertaking.

1. Mrs K was informed she could write a one-page statement detailing the amendments she sought to documents held by the respondent which would be attached to the documents. Mrs K did not provide such a statement. Instead, on 29 January 2013, she made a 95 page request to the respondent for amendment of the Report. In the main part of the request, she requested that: the whole Report be "overturned" (on four occasions); the Report overturned in part (24 occasions); parts of the Report be removed (49 occasions); and, parts of the Report be amended or corrected (111 occasions). Mrs K also complained of breach of procedural fairness (16 times), bias (7 times), irrationality/illegality (4 times), improper purpose (twice) and no evidence (once).

1. On 23 February 2013, the respondent rejected the request(s) but informed Mrs K that her request had nonetheless been attached to the two copies of the Report held by the respondent. Mrs K was not satisfied with this response and she then made an internal review application on 14 March 2013.

1. On 19 March 2013, the respondent rejected the application and again advised Mrs K that her 95 page request had been attached to the only two copies of the Report it held.

1. In early February 2013, two further requests for privacy internal review were made by Mrs K on behalf of one or both of her sons. One of these applications also sought the overturning of the Report. Both applications alleged breaches of all HPPs.

1. By an 18 page letter dated 13 April 2013, the applicant also sought to amend or overturn the Report on the basis that references to the "K family" were illegal and/or unclear. In the letter, the applicant made nine requests that the entire Report be "overturned" and 18 requests for its amendment. She also made 10 allegations of breach of procedural fairness. In subsequent correspondence, she raised the issue of overturning a paragraph on page 27 of the Report relating to conflict between the "K family" and the School, denying the existence of, and asserting that the respondent could not substantiate, such a conflict.

The application for review

1. On 5 August 2013, the applicant sent a formal privacy complaint seeking an internal review into the respondent's failure to act "when required to amend/overturn" the Report. The applicant specified that the conduct occurred "from 13/4/13 to 26/7/13".

1. The internal review not having been completed, the applicant, on 16 December 2013, commenced proceedings in the then Administrative Decisions Tribunal, specifying contraventions of IPPs 1-6 and 8-11 and requesting, in a document attached dated 8 December 2013, that the "entire review [Report] be overturned, as to amend it would entail writing a completely new document".

1. On 29 January 2014, the respondent advised that it had already attached Mrs K's 95 page request to the Report and that such attachment addressed the issues being raised by the applicant.

1. By letter dated 7 February 2014, the applicant alleged further grounds for the whole Report be "overturned" or "set aside" - to which she referred some 15 times. A similar demand was made by letter of 11 February 2014.

1. On 24 February 2014, the respondent finalised its privacy internal review report and advised it was not prepared to make the amendments sought. Instead it offered to attach either a statement prepared by the applicant of the amendments sought or to attach a copy of her letters of 11 April 2013 and 11 February 2014. That offer was refused.

1. On 27 February 2014, the respondent finalized the internal review determination.

CONSIDERATION

References to Mrs K

1. On 20 July 2014 Mrs K formally complained to the Tribunal that she did not consent to the use of "material and/or information" about her by the Respondent in these proceedings. She contended that the Tribunal should confine itself to only the matters that related to her mother, the applicant.

1. As can be observed from the background outlined above, the applicant and her daughter have both been in conflict with the Respondent since they both attended meetings on 10 and 16 February 2009, following the events of 9 February 2009, about which they complained. It was necessary to refer to Mrs K's role in the matter, in my view, to provide context to the applicant's complaint.

1. I have anonymised, not only the applicant's name but that of Mr and Mrs K, their son and his school with a view to preserving their privacy.

Are the present proceedings vexatious?

1. The Respondent's submits that the current proceedings are vexatious. It referred to s.55(1)(b) of the Civil and Administrative Tribunal Act 2013 ("CAT Act") which provides:

(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances:

(b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance...

1. Section 55(1)(b) is to the same effect of s.73(5)(g)(ii) of the (now repealed) Administrative Decisions Tribunal Act 1997 ('ADT Act'). The test previously applied in relation to s.73(5)(g)(ii) of the ADT Act, and now s.55(1)(b) of the CAT Act is the test set out in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 ('General Steel'). There Barwick CJ emphasised that the power of peremptory dismissal of proceedings is to be exercised cautiously and sparingly. Proceedings can be regarded as 'vexatious' if they are instituted with the intention of annoying, harassing or embarrassing the respondent, if they are brought for a collateral purpose such as wasting time or causing delay, are devoid of any practical effect, or are manifestly untenable.

1. In Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491, Roden J summarised what amounts to a frivolous and vexatious application in the following terms:

It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:

1.Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

2.They are vexatious if they are brought for collateral purposes and not for the purpose of having the court adjudicate on the issues to which they give rise.

3.They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.

1. More recently, the expression was considered by the Tribunal in WW v Department of Education and Communities [2011] NSWADT 300 at [17] and Bristrol Custodians Ltd v Chief Commissioner of State Revenue (No. 2) [2013] NSWADT 128 at [13]. In short, dismissal on this basis is not to be undertaken lightly.

1. In GQ v NSW Department of Education & Training [2008] NSWADT 212 DP Handley held, after referring to General Steel, that the Tribunal's power to dismiss proceedings under s.73(5)(h) of the ADT Act must be exercised with extreme caution, especially where the application is made prior to the applicant having a proper opportunity to present evidence in the substantive hearing. I note that in this matter the parties agreed it was appropriate for the matter to be dealt with on the papers and, to that end, filed their evidence and submissions. Consequently, the applicant has been afforded an opportunity to file all of her evidence and submissions that would be considered in the substantive hearing. I observe too, that notwithstanding the timetable set at planning meetings (as amended) has long past, the applicant has continued to file numerous submissions.

1. Turning to the issue of "collateral purpose", I was referred in particular, to Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 at [24], where the Court of Appeal said:

24 The appellant's attempt to use the Act as a vehicle for the collateral review of the merits or validity of official action should be rejected in any event. The Act is concerned with the accuracy of official records, not with the merits or legality of the official action recorded in them. ...

1. I was also referred to GA v University of Sydney [2009] NSWADT 230, where JM Molony said at [31]

31 In considering whether or not to amend information held by an agency it is important to remember, as Handley JA made clear in Crewdson .., that the FOI Act is concerned with the accuracy of official records, not with the merits or legality of the official action recorded in them. His Honour said that an attempt ".. to use the Act as a vehicle for collateral review of the merits or validity of official action should be rejected.'

1. In Z v Department of Education and Training (2011) NSWADTAP 26, the Appeal Panel again considered the notion of collateral attack and said at [37]- [39]:

37...The FOI Act regulates the content of records without, as we see it, being concerned with the legality of their creation...

38 In our view, all the FOI Act contemplates is that the Tribunal review the record placed before it for compliance with s. 39(c) without going to underlying issues of legality of the exercise of statutory powers or the fairness of the procedures that led to their making. See also, GA v The University of Sydney [2009] NSWADT 230 at [48]-[56]. GA v The University of Sydney [2010] NSWADTAP 31 at [24]-[27].

39 Normally, the appropriate avenue is judicial review, as the Tribunal reflects in its reference to 'courts of law'. On the other hand, in a clear case where there is no factual substatrum for the judgement giving rise to the record, we would see it as appropriate to intervene and amend the records (as to which, see Central Sydney Area Health Service -v- Crewdson (GD) [2001] NSWADTAP 44 esp at [66]). This case has a clear factual substratum.

1. In VZ v University of Newcastle (No. 2) [2012] NSWADT 167 at [23] JM Molony said:

23 Section 15 of the PPIP Act is a vehicle that enables individuals to ensure that their personal information held by agencies to complete, accurate and not misleading. It does not provide a backdoor means for individuals to call into question the validity, legality, merits or fairness of what is recorded.

1. The respondent submitted that, having regard to the applicant's conduct the proceedings are vexatious, being brought for the collateral purpose of overturning the Report.

1. On 13 April 2013, the applicant had specifically sought to have the Report overturned completely or to have multiple aspects of the Report amended. On 5 August 2013, the applicant's formal privacy complaint referred to the respondent's failure to act "when required to amend/overturn" the Report. In her application for review she requested that the entire Report be overturned.

1. By letter dated 7 February 2014, the applicant requested, a number of times, that the whole Report be "overturned" or "set aside". A similar demand was made by letter of 11 February 2014. Notwithstanding that the Respondent has offered to attach either a statement of the amendments sought by the applicant or a copy of her letters of 11 April 2013 and 11 February 2014 she did not accept that course. Instead she has pressed for the whole Report to be "overturned" or "set aside".

1. This was also the theme of the applicant's discussions at the several planning meetings that I held in an attempt to narrow the issues in the matter.

1. It is clear to me that the applicant is seeking to use the PIPP Act as a 'backdoor' means of having the Report set aside. In Crewdson the Court of Appeal held that the amendment provisions of the FOI Act were not a vehicle for review of the 'merits or legality of the official action recorded in them' and that attempts to use them for such collateral purposes, should be 'rejected'. I consider the principle in Crewdson equally applicable to s.15 of the PIPP Act, as did JM Molony in GA at [52] and VZ at [23].

1. The applicant consistently stated that it was her endeavour in these proceedings to overturn the Report. I find she has engaged in an attempt to use s.15 PPIP Act for the collateral purpose of overturning the Report.

1. Accordingly the applicant's application for review should be dismissed under s.55(1)(b) of the Civil and Administrative Tribunal Act 2013.

1. The Respondent also made detailed submissions that the applicant and Mrs K were 'acting in concert'. Having regard to my findings above, it was not necessary to consider that submission.

1. I observe in passing that the Respondent had offered to attach a statement from the applicant to each of the 2 copies of the Report but she has declined that offer.

DECISION

1. The applicant's application for review is dismissed under s.55(1)(b) of the Civil and Administrative Tribunal Act 2013.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar