Department of Education and Training v EM

The case involves the Department of Education and Training as the appellant, appealing a decision of the Information Privacy Commissioner (IPC) against the applicant, EM, who was seeking a review of certain conduct. The dispute centred on the timeliness of EM's application under the Privacy and Personal Information Protection Act 1998. The appeal was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The legal issues before the court revolved around the interpretation of the term "first became aware" in section 53(3)(d) of the Privacy and Personal Information Protection Act 1998, which outlines the time limits for making a review application. Specifically, the court needed to determine whether the subjective test, as applied by the IPC, was appropriate. EM argued that the Tribunal should have considered both EM's and the Department's evidence in determining when EM first became aware of the conduct, rather than solely relying on EM's evidence.

The court found that the Tribunal had erred by not considering the Department's evidence when determining when EM first became aware of the conduct. The court held that the correct approach required the Tribunal to consider both parties' evidence to determine the point at which EM first became aware of the conduct. Consequently, the court allowed the appeal and set aside the decision of the IPC. The review application was remitted to the Tribunal differently constituted, to allow for a fresh consideration of the evidence and the timeliness of the application under the statutory time limit.