Department of Education and Training v GA, GB, GC, GD & Ge (GD)

[2004] NSWADTAP 34

Appeal Panel - Internal

CITATION:	Department of Education and Training v GA, GB, GC, GD & GE (GD) [2004] NSWADTAP 34 revised - 2/09/2004
PARTIES:	APPELLANT Department of Education and Training RESPONDENTS GA, GB, GC, GD & GE
FILE NUMBER:	049024
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	07/19/2004
DATE OF DECISION:	08/04/2004
DECISION UNDER APPEAL:	GA, GB, GC, GD & GE v Department of Education and Training
BEFORE:	Hennessy N - Magistrate (Deputy President); Needham J - Judicial Member; Mapperson K - Non Judicial Member
CATCHWORDS:	leave to appeal out of time
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	023250
DATE OF DECISION UNDER APPEAL:	06/11/2003
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Privacy and Personal Information Protection Act 1998
CASES CITED:	GA & Ors v Department of Education Training and NSW Police [2004] NSWADT 2
REPRESENTATION:	APPELLANT A Johnson, solicitor RESPONDENT In person
ORDERS:	Appellants allowed until 21 June 2004 to file an appeal against oral decision of the Tribunal made on 11 June 2003.

Introduction

1 These reasons deal with a preliminary issue of whether this appeal should be accepted out of time. On 21 June 2004, the Department of Education and Training (the appellant) lodged an appeal against a decision of the Tribunal handed down on 11 June 2003. Section 113 of the Administrative Decisions Tribunal Act 1997 (the ADT Act) requires an appeal to be lodged within 28 days of after the Tribunal furnishes the party with written reasons or within such further time as the Appeal Panel may allow.

History of the proceedings

2 The decision against which the appellant has appealed was given orally by the Tribunal on 11 June 2003. That decision that it had jurisdiction to review the appellant’s conduct in relation to collection of personal information under the Privacy and Personal Information Protection Act 1998 (PPIP Act). The appellant, who was the respondent before the Tribunal, had submitted to the Tribunal that since the issue of collection was not raised in GA’s review application it could not be dealt with by the Tribunal. The appellant decided not to appeal against the Tribunal’s ruling, but to wait until the Tribunal made its substantive decision and then to consider whether to appeal.

3 The Tribunal handed down its written decision on 12 January 2004. (GA & Ors v Department of Education Training and NSW Police [2004] NSWADT 2.) At [23] of that decision the Tribunal gave a ruling on the “collection” issue contrary to its oral decision. The Tribunal decided not to consider any breaches of the PPIP Act relating to the collection of personal information by the appellant. GA appealed against the Tribunal’s finding in its written reasons that it did not have jurisdiction to review conduct of the appellant which was allegedly in breach of the Information Protection Principle relating to collection of personal information. In the course of considering that appeal, it came to the Appeal Panel’s attention that the Tribunal had made a contrary decision on the “collection” issue in its oral reasons on 11 June. After examining the history of the matter, the Appeal Panel concluded that:

This analysis leads us to conclude that the Tribunal’s decision in relation to jurisdiction in its written reasons at [23] is invalid. The operative decision is the Tribunal’s oral decision that it has jurisdiction to review the conduct of the first respondent in relation to collection of personal information. None of the parties has appealed against that decision and the Appeal Panel makes no orders in relation to it. It is nevertheless open to the first respondent to lodge a late Notice of Appeal against the Tribunal’s oral decision on jurisdiction. The Appeal Panel would then decide, pursuant to s 113(3) of the ADT Act, whether to allow further time than the usual 28 days for the appeal to be made.

4 The appellant submitted that although it first received a copy of the Tribunal’s written reasons on 10 May 2004, the first time it was in a position where it was prejudiced by the decision of 11 June 2003 and where it was appropriate to appeal, was on delivery of the decision of the Appeal Panel. The appellant appealed the decision of 11 June 2003, which was within 28 days of the Appeal Panel’s decision.

5 GA did not make any submissions in relation to the out of time issue, although invited to do so by letter dated 5 July 2004.

Decision

6 In view of the fact that the appellant acted promptly to appeal once it became apparent that the decision in the written reasons was invalid, we allow the appellant’s until 21 June 2004 to appeal against the Tribunal’s oral decision made on 11 June 2003 in relation to the “collection” issue.

Directions

7 The Appeal Panel makes the following further directions:

1. The Respondent to file and serve Notice of Reply and any submissions in reply by 20 August 2004.

2. Matter listed for hearing on 10 September 2004 at 10a.m.