DMR v Lane Cove Council

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Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: DMR v Lane Cove Council [2024] NSWCATAD 193
Hearing dates: 20 May 2024
Date of orders: 12 July 2024
Decision date: 12 July 2024
Jurisdiction:Administrative and Equal Opportunity Division
Before: J Sullivan, Senior Member
Decision:

(1)   The respondent issue a written apology to the applicants within 30 days from the date of this decision.

(2)   The respondent review and update its Privacy Management Plan, policies, training programs and monitoring/compliance processes regarding (i) the recording of complaints (whether anonymous or not); (ii) steps required to test the veracity of complaints before use; and (iii) appropriate delegation levels for the issue of Stop Work Orders, within 120 days from the date of this decision.

(3) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) publication or broadcast of the names of the applicants is prohibited.

Catchwords:

ADMINISTRATIVE LAW — Privacy and Personal Information Protection Act 1998 (NSW) — personal information — anonymous complaint — later recorded — error found after Stop Work Order issued — “investigative agency”

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Environmental Planning and Assessment Act 1979 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Lane Cove Local Environmental Plan 2009

Local Government Act 1993 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:

AKL v University of Western Sydney [2013] NSWADT 147

ALZ v SafeWork NSW [2017] NSWCATAP 51

AOB v Commissioner of Police [2013] NSWADT 138

AQK v Commissioner of Police, NSW Police Force [2014] NSWCATAD 55

BYW v Commissioner of Police, NSW Police Force [2015] NSWCATAP 270

Collins v Department of Fair Trading [2019] NSWCATAP 199

CWQ v Department of Family and Community Services [2017] NSWCATAD 252

Department of Education and Training v GA (No 3) [2004] NSWADTAP 50

Department of Education and Training v VK [2010] NSWADTAP 52

Director General Department of Education and Training v MT (GD) [2005] NSWADTAP 77

EEH v Insurance and Care NSW (iCare) [2021] NSWCATAD 72

EEH v NSW Self Insurance Corporation [2022] NSWCATAD 361

FKV v Nambucca Valley Council [2022] NSWCATAD 2019

FM v Department of Community Services [2008] NSWADT 288

FM v Vice Chancellor, Macquarie University [2003] NSWADT 78

GR v Department of Housing (No 2) (GD) [2006] NSWADT 34

GR v Department of Housing [2004] NSWADTAP 26

GV v Office of the Director of Public Prosecutions [2003] NSWADT 177

HP v Hunter New England Area Health Services [2009] NSWADT 186

HW v Office of the Director of Public Prosecutions (No 2) [2004] NSWADT 73

Insurance and Care NSW v EEH [2021] NSWCATAP 350

JD v Department of Health (GD) [2005] NSWADTAP 44

KO v Commissioner of Police, NSW Police Force (GD) [2005] NSWADTAP 56

KP v Narrandera Shire Council (GD) [2011] NSWADTAP 15

Meacham v Commissioner of Police [2020] NSWCATAP 107

MT v Director General, NSW Department of Education & Training [2004] NSWADT 194

NK v Northern Sydney Central Coast Area Health…

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Details
Case
[2024] NSWCATAD 193
Decision Date

CaseChat Overview and Summary

The applicants in this case, DMR, sought relief from the Civil and Administrative Tribunal (CAT) against the Lane Cove Council. DMR alleged that the Council breached their privacy rights under the Privacy and Personal Information Protection Act 1998 (NSW) when it issued a Stop Work Order based on an anonymous complaint. The complaint was later recorded, and an error was discovered after the Order was issued. DMR claimed that the Council's handling of the complaint and subsequent actions constituted a misuse of personal information and a breach of their privacy rights.

The primary legal issues before the Tribunal were whether the Council's actions amounted to a misuse of personal information and a breach of privacy rights under the Act, and if so, what remedies should be ordered. The Tribunal needed to consider the definition of "personal information" and whether the anonymous complaint, once recorded, constituted such information. It also needed to assess whether the Council's reliance on the complaint, without verifying its accuracy, amounted to a misuse of personal information. Furthermore, the Tribunal had to determine the appropriate remedies for any breaches found.

The Tribunal found that the anonymous complaint, once recorded, constituted personal information under the Act. It held that the Council misused this personal information by acting on the complaint without verifying its accuracy, thereby breaching DMR's privacy rights. The Tribunal emphasised the importance of investigative agencies, such as the Council, taking steps to verify the veracity of complaints before acting on them. Regarding remedies, the Tribunal ordered the Council to issue a written apology to DMR, review and update its Privacy Management Plan and related policies, and refrain from publishing or broadcasting the names of the applicants. These orders aimed to address the breaches and prevent future occurrences.

The Tribunal's final orders included a requirement for the Council to issue a written apology to DMR within 30 days, review and update its privacy-related policies and processes within 120 days, and prohibit the publication or broadcast of DMR's names. These orders sought to rectify the breaches, ensure better privacy protection practices, and provide relief to DMR.

Orders

Orders of the court

(1) The respondent issue a written apology to the applicants within 30 days from the date of this decision.

(2) The respondent review and update its Privacy Management Plan, policies, training programs and monitoring/compliance processes regarding (i) the recording of complaints (whether anonymous or not); (ii) steps required to test the veracity of complaints before use; and (iii) appropriate delegation levels for the issue of Stop Work Orders, within 120 days from the date of this decision.

(3) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) publication or broadcast of the names of the applicants is prohibited.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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