CJU v SafeWork NSW (No.2)

[2019] NSWCATAD 53

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

CJU v SafeWork NSW (No.2) [2019] NSWCATAD 53

Hearing dates:

On the papers

Date of orders:

02 April 2019

Decision date:

02 April 2019

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

P Durack SC, Senior Member

Decision:

(1) Pursuant to s 55(2)(b) of the Privacy and Personal Information Protection Act 1998, the respondent is to refrain from any disclosure of the applicant’s personal information in contravention of s 18(1) of that Act.

(2)  There is no order as to costs. 

Catchwords:

PRIVACY – costs, restricting future breach of principles

Legislation Cited:

Civil and Administrative Tribunal Act 2013
Privacy and Personal Information Protection Act 1998

Cases Cited:

CJU v SafeWork NSW [2018] NSWCATAD 171

Category:

Consequential orders (other than Costs)

Parties:

CJU (Applicant)
SafeWork NSW (Respondent)

Representation:

Solicitors:
Applicant (Self-represented)
Crown Solicitor’s Office (Respondent)

File Number(s):

2017/00138493

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal 2013, the name of the applicant and any other information identifying the applicant is not to be disclosed without further order of the Tribunal

REASONS FOR DECISION

1. These reasons are concerned with two consequential matters arising from my principal judgment in these proceedings – first, whether to make an order concerning the risk of future breaches of s 18(1) of the Privacy and Personal Information Protection Act 1998 (PPIPA) and, secondly, concerning costs.

2. The question of costs can be dealt with, immediately. First, I will dispense with a hearing about costs. The parties have been given an opportunity to make submissions about the need for a hearing. No party has raised any objection to proceeding on the papers. In fact, no submissions at all about either of these two matters have been provided by the applicant.

3. I see no reason to depart from the general rule set out in s 60(1) of the Civil and Administrative Tribunal Act 2013 that each party is to pay their own costs. In this regard, I agree with the respondent that no basis has been identified to establish the required “special circumstances warranting an award of costs”, as provided for in s 60(2) of that Act.

4. The question as to whether any further order should be made in these proceedings in addition to the payment of damages was addressed in the main hearing. In CJU v SafeWork NSW [2018] NSWCATAD 171 (principal judgement) I set out the terms of a potential order restraining the respondent from disclosing any personal information that it holds about the applicant without the applicant’s consent or without having given the applicant notice of its intention to do so. The justification for such a potential order was my finding that there had been inadequate training concerning information privacy protection giving rise to a sufficient risk of a future breach in respect of the applicant’s personal information: CJU v SafeWork NSW [2018] NSWCATAD 171 at [111] and [140] – [141].

5. In accordance with directions, written submissions have been received from the Crown Solicitor’s Office about such a potential order. No submissions about the particular order have been received from the applicant.

6. Very helpfully, the respondent has pointed to a number of significant problems with the making of such an order, including:

1. It would be in excess of power because it goes beyond what is permitted by s 55(2)(b) of PPIPA. This is because it would operate to restrict conduct that would otherwise be lawful (for example, disclosure that is exempted from compliance with s 18(1) under s 23 or 27A of PPIPA).

2. It is not apparent how the potential order would or could be effective in view of the limited administrative review jurisdiction of the Tribunal. For example, it is far from apparent how the Tribunal would be able to determine any application by the applicant, who, having received advance notice of disclosure in accordance with the order, sought to restrain such disclosure in the Tribunal.

7. I agree that in view of these problems I should not make the order in the terms foreshadowed.

8. However, for the reasons I gave in the principal judgment, I will make an order in terms that the respondent is to refrain from any disclosure of the applicant’s personal information in contravention of s 18(1). The respondent accepts that such an order is permissible and avoids the problems that I have referred to.

Orders

9. For the above reasons I make the following orders:

1. Pursuant to s 55(2)(b) of the Privacy and Personal Information Protection Act 1998, the respondent is to refrain from any disclosure of the applicant’s personal information in contravention of s 18(1) of that Act.

2. There is no order as to costs.

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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

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

Decision last updated: 02 April 2019