DQF v Secretary, Department of Communities and Justice

[2021] NSWCATAD 351

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DQF v Secretary, Department of Communities and Justice [2021] NSWCATAD 351

Hearing dates:

On the papers

Date of orders:

22 November 2021

Decision date:

22 November 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

The application is dismissed.

Catchwords:

ADMINISTRATIVE LAW – privacy – personal information - whether internal review could be conducted by the Respondent’s contracted service provider – whether application should be dismissed – whether application is frivolous, vexatious, misconceived or lacking in substance

Legislation Cited:

Administrative Decision Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes (Administration of Sentences) Act 1999 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:

Alchin v Rail Corporation NSW [2012] NSWADT 142

Attorney General v Wentworth (1988) 14 NSWLR 481

BDK v Department of Education and Communities [2015] NSWCATAP 129

Choi v Legal Aid Commission of NSW [2020] NSWCATAD 242

Choi v University of Technology Sydney [2019] NSWCATAD 176

CRE v Blacktown City Council [2017] NSWCATAD 285

GA v Commissioner of Police (NSW) [2005] NSWADTAP 38

Valastar Pty Ltd v Chief Commissioner of State Revenue [2010] NSWADTAP 84

Category:

Principal judgment

Parties:

DQF (Applicant)
Secretary, Department of Communities and Justice (Respondent)

Representation:

Solicitors:
Applicant (Self-Represented)
Department of Communities and Justice, Legal (Respondent)

File Number(s):

2020/00061237

Publication restriction:

An order is made under section 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) restricting publication of the name of the Applicant in these reasons.

REASONS FOR DECISION

Introduction

1. These proceedings concern a complaint by the Applicant under the Privacy and Personal Information Protection Act 1998 (“the PPIP Act”).

2. In these reasons the names of private individuals have been anonymised so as to preserve the privacy of their personal affairs. The Applicant is referred to as DQF.

3. Pursuant to section 53 of the PPIP Act a person may apply to a public sector agency for the review of any conduct said to be in breach of an Information Protection Principle (“IPP”) provided for by the PPIP Act. Pursuant to section 55 of the PPIP Act and sections 7 and 9 of the Administrative Decisions Review Act 1997 (“the ADR Act”), a person who has sought internal review of the conduct of an agency who is not satisfied with the internal review decision may apply to the Tribunal for administrative review of the 'conduct that was the subject of the application under section 53'.

Background

4. DQF made a request to the Department of Communities and Justice ("the Respondent") under section 53 of the PPIP Act for review of conduct by Parklea Correctional Centre (“the Centre”). His complaint concerns conduct alleged to have occurred while he was in custody at the Centre between June 2019 and August 2019.

5. DQF alleged contraventions of section 12 and section 14 of the PPIP Act. The conduct that was the subject of DQF’s Internal Review request was:

1. that the Correctional Centre was not keeping Telephone - Request for Change forms and Inmate Request Forms for as long as necessary, nor protecting them by taking such security safeguards as were reasonable in the circumstances, against loss, unauthorised access, use, modification or disclosure and against all other misuse; and

2. that the Correctional Centre did not provide DQF with access to "legal papers" without excessive delay. DQF clarified that the legal papers comprised documents containing personal information concerning current legal matters.

6. MTC Broadspectrum is engaged to manage and operate the Centre on behalf of the Crown.

7. The Respondent forwarded DQF’s application to MTC Broadspectrum to conduct the internal review on its behalf.

The internal review determination

8. The internal review identified a breach of section 12 of the PIPP Act. It found no breach of section 14 on the basis that DQF’s personal property that was held by the Centre is not DQF’s personal information for the purposes of the PIPP Act. The internal review report stated:

An individual seeking access to their personal property, whilst in the custody of CSNSW is subject to the Crimes (Administration of Sentences Act) 1999 (CAS Act) and the Custodial Operations Policy and Procedures (COPP) 9.1.

…

[A] request to retrieve or open his property whilst in custody is subject to the CAS Act and the COPP and is not considered to be an access application pursuant to section 14 of the PPIP Act.

9. In relation to the issue of access to "legal papers" the Respondent asserts that it did not hold DQF’s legal papers. There is no record of legal papers being recorded as received, accessed or provided to DQF during his time at the Centre.

10. The report made recommendations that MTC Broadspectrum apologise to DQF for the breach and implement administrative measures to minimise the risk of future similar breaches, including reviewing its operational procedures and providing further staff training.

Relevant provisions of the PIPP Act

11. Section 4 of the PIPP Act provides a definition of “personal information”. It provides:

4 DEFINITION OF "PERSONAL INFORMATION"

(1) In this Act,

"personal information" means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.

(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.

(3) Personal information does not include any of the following--

(a) information about an individual who has been dead for more than 30 years,

(b) information about an individual that is contained in a publicly available publication,

(c) information about a witness who is included in a witness protection program under the Witness Protection Act 1995 or who is subject to other witness protection arrangements made under an Act,

(d) information about an individual arising out of a warrant issued under the Telecommunications (Interception) Act 1979 of the Commonwealth,

(e) information about an individual that is contained in a public interest disclosure within the meaning of the Public Interest Disclosures Act 1994 , or that has been collected in the course of an investigation arising out of a public interest disclosure,

(f) information about an individual arising out of, or in connection with, an authorised operation within the meaning of the Law Enforcement (Controlled Operations) Act 1997 ,

(g) information about an individual arising out of a Royal Commission or Special Commission of Inquiry,

(h) information about an individual arising out of a complaint made under Part 8A of the Police Act 1990 ,

(i) information about an individual that is contained in Cabinet information or Executive Council information under the Government Information (Public Access) Act 2009 ,

(j) information or an opinion about an individual's suitability for appointment or employment as a public sector official,

(ja) information about an individual that is obtained about an individual under Chapter 8 (Adoption information) of the Adoption Act 2000 ,

(k) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subsection.

12. In relation to the question of whether personal information is ‘held’ by a public sector agency section 4(4) of the PIPP Act provides:

(4) For the purposes of this Act, personal information is "held" by a public sector agency if--

(a) the agency is in possession or control of the information, or

(b) the information is in the possession or control of a person employed or engaged by the agency in the course of such employment or engagement, or

(c) the information is contained in a State record in respect of which the agency is responsible under the State Records Act 1998.

…

13. DQF alleged that conduct by MTC Broadspectrum breached sections 12 and 14 of the PIPP Act. Section 12 of the PIPP Act provides:

12   Retention and security of personal information

A public sector agency that holds personal information must ensure—

(a) that the information is kept for no longer than is necessary for the purposes for which the information may lawfully be used, and

(b) that the information is disposed of securely and in accordance with any requirements for the retention and disposal of personal information, and

(c) that the information is protected, by taking such security safeguards as are reasonable in the circumstances, against loss, unauthorised access, use, modification or disclosure, and against all other misuse, and

(d) that, if it is necessary for the information to be given to a person in connection with the provision of a service to the agency, everything reasonably within the power of the agency is done to prevent unauthorised use or disclosure of the information.

14. Section 14 of the PIPP Act provides:

14   Access to personal information held by agencies

A public sector agency that holds personal information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information.

15. The relevant review provisions in the PIPP Act are sections 53 (internal review) and 55 (external review by the Tribunal). Section 53 of the PIPP Act provides:

16. 53   Internal review by public sector agencies

(1) A person (the applicant) who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct.

…

(2) The review is to be undertaken by the public sector agency concerned.

…

(4) Except as provided by section 54 (3), the application must be dealt with by an individual within the public sector agency who is directed by the agency to deal with the application. That individual must be, as far as is practicable, a person—

(a) who was not substantially involved in any matter relating to the conduct the subject of the application, and

(b) who is an employee or officer of the agency, and

(c) who is otherwise suitably qualified to deal with the matters raised by the application.

(5) In reviewing the conduct the subject of the application, the individual dealing with the application must consider any relevant material submitted by—

(a) the applicant, and

(b) the Privacy Commissioner.

(6) The review must be completed as soon as is reasonably practicable in the circumstances. However, if the review is not completed within 60 days from the day on which the application was received, the applicant is entitled to make an application under section 55 to the Tribunal for an administrative review of the conduct concerned.

(7) Following the completion of the review, the public sector agency whose conduct was the subject of the application may do any one or more of the following—

(a) take no further action on the matter,

(b) make a formal apology to the applicant,

(c) take such remedial action as it thinks appropriate (eg the payment of monetary compensation to the applicant),

(d) provide undertakings that the conduct will not occur again,

(e) implement administrative measures to ensure that the conduct will not occur again.

17. Section 54(3) of the PIPP Act provides for an internal review to be undertaken by the Privacy Commissioner on behalf of an agency

18. Section 55 of the PIPP Act provides:

55   Administrative review of conduct by Tribunal

(1) If a person who has made an application for internal review under section 53 is not satisfied with—

(a) the findings of the review, or

(b) the action taken by the public sector agency in relation to the application,

the person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct that was the subject of the application under section 53.

…

(2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders—

(a) subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct,

(b) an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice,

(c) an order requiring the performance of an information protection principle or a privacy code of practice,

(d) an order requiring personal information that has been disclosed to be corrected by the public sector agency,

(e) an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant,

(f) an order requiring the public sector agency not to disclose personal information contained in a public register,

(g) such ancillary orders as the Tribunal thinks appropriate.

(3) Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997.

DQF’s application to the Tribunal

19. DQF applied to the Tribunal under section 55 of the PPIP Act for administrative review of the alleged conduct. He applied to the Tribunal when the Respondent did not complete the internal review within the 60 days provided for by section 53 (6) of the PPIP Act. The internal review was completed the following day.

20. He is not satisfied with the outcome of the internal review, and contends that that the conclusions relating to breaches of sections 12 and 14 of the PPIP Act were drawn from incorrect or misleading information.

Preliminary issues

21. DQF also raised several preliminary issues:

1. Whether MTC Broadspectrum, as a non-public sector agency, is required to comply with the PPIP Act.

2. As administrative reviews under Part 5 of the PPIP Act can only be conducted in relation to certain conduct by a public sector agency; and, as MTC Broadspectrum does not fall within the definition of a ‘public sector agency’ in section 3, whether:

“it is not required to comply with the PPIP Act, other than by a contractual requirement in a Management Deed”.

3. Whether the handling and processing of his application for internal review was not in accordance with section 53(4) of the PPIP Act noting that:

1. he made a complaint about the handling to the Deputy Secretary of the Respondent;

2. the Respondent did not direct a person who is an employee or officer of the agency to conduct the review, and instead, directed a manager for a NSW government contractor to deal with the review; and

3. the Respondent did not take any reasonable steps in order to address any conflict of interest that could arise by directing an officer of MTC Broadspectrum to conduct the review.

Orders sought

22. DQF seeks the following orders:

a) the Department is to refrain from any further conduct in breach of the Information Protection Principles in sec 12(a), sec 12(b) and sec 14 of the PPIP Act.

b) any such other orders as the Tribunal deems appropriate for the purpose of making MTC Broadspectrum, a non-public sector agency, comply with the PIPP Act

Should the Department’s decision under review be affirmed, I seek leave to re-open the case and adduce further evidence and submissions.

The dismissal application

23. The Respondent brought an application (“the dismissal application”) seeking an order that these proceedings be dismissed for want of jurisdiction or otherwise under section 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (“the NCAT Act”).

24. Section 55(1) of the NCAT Act provides:

55   Dismissal of proceedings

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

(a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate,

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

(c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings,

(d) if the Tribunal considers that there has been a want of prosecution of the proceedings.

25. The dismissal application is to be decided without the need for the parties to be present i.e. on the papers. Both parties have filed written submissions in relation to the dismissal application.

The issue for determination

26. The issue for the Tribunal is whether DQF’s application for review should be dismissed.

The Respondent’s case

27. The Respondent’s dismissal application relies on several grounds. It stated:

The Respondent submits that these proceedings have been instituted and are being maintained for an improper purpose in circumstances where the internal review has been finalised and a breach of an information protection principle has been found.

The Applicant seeks review of a preliminary matter, being that MTC Broadspectrum conducted the internal review. However, as the matter has since been finalised and found in the Applicants favour, in that a breach has been identified and a written apology provided, these proceedings in respect of that preliminary issue are frivolous, vexatious, misconceived or lacking in substance. This is because, no result of these proceedings could affect the final outcome of the substantive matter, place the Applicant in a better position or result in a more favourable outcome for the Applicant than what the Applicant is already in. The issue of whether MTC Broadspectrum or an employee of the Respondent conducted the internal review is rendered moot by the outcome of the internal review.

The Applicant’s amended application for administrative review filed on 5 May 2020 is lacking in substance, indicating mere assertions with no more than a remote possibility of merit.

It is the Respondent’s submission that these proceedings are brought by the Applicant for the very purpose of agitating litigation against the Respondent and not for the purpose of resolving the substantive matters in regards to the handling of the Applicant’s personal information.

It then follows, that the application is untenable and for a collateral purpose. It is therefore vexatious.

The Respondent further contends that the mandatory pre-condition prescribed by Section 55 of the PPIP Act, that is, that the applicant must be seeking external review of conduct which was subject of the original internal review application, is not met.

Accordingly the Respondent contends that the Tribunal does not have the jurisdiction to hear these proceedings as the conduct in which the applicant seeks review of, is not conduct which was the subject of the applicant’s internal review application dated 26 December 2019.

…

28. The Respondent filed written submissions in support of the dismissal application, including submissions on each ground.

Lack of Jurisdiction

29. The Respondent contends that the Tribunal does not have jurisdiction to hear the proceedings insofar as they relate to issues that were not raised in the original application for internal review. The Respondent submitted that, pursuant to section 55 of the PPIP Act and sections 7 and 9 of the ADR Act, the Tribunal’s jurisdiction is limited to the ‘conduct that was the subject of the application under section 53’.

30. The Respondent relies on the decision in CRE v Blacktown City Council [2017] NSWCATAD 285 in which Senior Member Robertson considered the Tribunal’s role and jurisdiction with regard to the conduct of an external review pursuant to section 55 of the PPIP Act and noted at paragraph [49]-[50]:

“The jurisdiction conferred on the Tribunal by section 55(1) of the PPIP Act is to conduct an administrative review under the Administrative Decisions Review Act 1997 of the conduct that was the subject of the application under section 53” [that is the application for internal review]. It is clear from authority that the Tribunal has no jurisdiction to consider allegations of breach of information protection principles that are not raised by the application for internal review (see AQK v Commissioner of Police, NSW Police Force [2014] NSWCATAD 55 at [10] to [12]; KO & KP v Commissioner of Police, NSW Police (GD) [2005] NSWADTAP 56 at [10] to [14].

The question is what issues are raised by the application for internal review “reasonably construed” (see KO & KP v Commissioner of Police at [13]; BXK v Western Sydney University [2016] NSWCATAD 235 at [13]).”

31. In GA v Commissioner of Police (NSW) [2005] NSWADTAP 38 the Tribunal held that there are three pre-conditions to the Tribunal’s jurisdiction under section 55:

1. The person must have made an application for internal review under section 53;

2. The person must be dissatisfied with the findings of the review or the action taken by the public sector agency in relation to the application; and

3. The person must be asking the Tribunal to review the conduct that was the subject of the application.

32. The Respondent submitted that DQF meets pre-conditions (1) and (2) as he made an application for internal review under section 53 and stated that he is dissatisfied with the action taken. However, the third pre-condition, that he must be asking the Tribunal to review the conduct that was subject of the application, has not been met. This is because DQF is not asking the Tribunal to review the conduct that was subject of the original internal application, but rather is attempting to ventilate that the internal review was undertaken by MTC Broadspectrum.

33. Accordingly, the Respondent contends that the Tribunal does not have the jurisdiction to hear these proceedings as this was not conduct which was the subject of DQF’s internal review application. It submits that the ‘preliminary issues’ raised by DQF do not relate to the original internal review conducted by MTC Broadspectrum in accordance with section 53 of the PPIP Act and as such are not matters that are able to be reviewed by the Tribunal.

Vexatious proceedings

34. The Respondent contends that the proceedings are vexatious. It submitted that DQF is demonstrating a pattern of conduct similar to that of the applicant in Choi v University of Technology Sydney [2019] NSWCATAD 176. That is, he has a sense of grievance with the Respondent, and is endeavouring to use the external review provisions conferred by the PPIP Act as a vehicle to litigate. In this sense, the proceedings are vexatious and should be dismissed.

35. The Respondent submits that DQF’s predominant purpose in bringing and/or maintaining these proceedings is an improper or collateral purpose aimed at achieving remedies which should properly be pursued in other forums. In addition, the Respondent submits that the grounds on which the proceedings have been brought are so obviously untenable or manifestly groundless as to be utterly hopeless and are therefore vexatious: see discussion in Choi v University of Technology Sydney at paragraph [59].

36. The Respondent contends that in seeking to ventilate his concerns in relation to his treatment in custody with particular regard to his requests for access to his personal property, DQF’s application can be characterised as vexatious. This is because the grounds for external review are unrelated to his rights under the PPIP Act and untenable or manifestly groundless. Further, he is seeking to litigate the conduct and findings in regard to the privacy internal review that has been finalised and found in his favour. A breach of section 12 has been identified and appropriate recommendations made. A written apology has been provided.

Proceedings are lacking in substance

37. The Respondent contends that DQF’s application is lacking in substance because the contentions the he has raised are not reasonably arguable. A finding of a breach has been made with respect to one of the issues and there is no jurisdiction in respect of the second issue because the information is not ‘held’ by the agency.

38. The Respondent further submits that the preliminary issue concerning the referral of the conduct of the internal review to MTC Broadspectrum is consistent with the section 53(4) of the PPIP Act and any assertions made by DQF to the contrary are lacking in substance.

39. As noted above, MTC Broadspectrum is responsible for the management of Parklea Correctional Centre. The Respondent submits that the nexus between it and MTC Broad Spectrum is even closer than in the circumstances of a public sector agency retaining a solicitor or agent to conduct a privacy internal review. It relies on the approach taken by the Tribunal in CRE v Blacktown City Council. At paragraph [67] the Tribunal noted:

As the Information Commissioner submitted, the requirement that the individual must be “as far as practicable” a person who is an employee or officer of the agency, implicitly recognises that, where it is not practicable, the person conducting the review need not be an employee or officer of the agency but may be, as in this case, a consultant retained by the agency to carry out the review. In this case, it was not practicable for the review to be conducted by an employee or officer of the Council.

40. In CRE v Blacktown City Council the Tribunal raised no concerns with the conduct of a privacy internal review by a third party retained for the purpose. The Respondent submits that in the circumstances of this matter it had considered the operation of 53(4) of the PPIP Act and jurisdictional issues and formed the strong view that the nominated internal reviewer within MTC Broadspectrum was the most appropriate person to conduct the internal review. The nominated reviewer was not involved in any matter relating to the conduct the subject of the application and was suitably qualified to deal with the matters raised by the application. It was of the view that it was impracticable for an officer of the Respondent to conduct the internal review.

41. The Respondent further submits that it acknowledged DQF’s concerns in relation to issues of perceived and actual bias because of MTC Broadspectrum undertaking the internal review. The Respondent stated that, in order to ensured that specific measures were taken to manage any concerns of bias:

1. DQF was made aware of the contact details of the internal reviewer to ensure that he could participate in the internal review process;

2. the internal review was conducted by an independent, legally qualified decision maker within MTC Broadspectrum who was not involved in the custodial operations or records handling processes of MTC Broadspectrum or the circumstances giving rise to DQF’s complaint;

3. its Legal unit maintained oversight of the conduct and findings of the privacy internal review;

4. the Privacy Commissioner was aware of the conduct of the privacy internal review by MTC Broadspectrum and notified of the draft findings of the internal review;

5. the Privacy Commissioner provided MTC Broadspectrum with a copy of a checklist to assist MTC Broadspectrum in the conduct of its internal review; and

6. the Privacy Commissioner was provided a copy of the draft internal review findings and made no submission in relation to the conduct or the findings of the internal review.

42. The Respondent submits that the review conducted by MTC Broadspectrum was carried out in conformity with the requirements of section 53 of the PPIP Act. It contends that, in so far as they concern the referral of the conduct of the internal review to MTC Broadspectrum DQF’s assertions are lacking in substance. The Respondent highlighted several matters including:

1. the conduct that was the subject of the internal review application concerned acts and practices of MTC Broadspectrum in carrying out its functions and activities under the contractual agreement between the Respondent and MTC Broadspectrum, while DQF was in the custody of Corrective Services NSW;

2. Part 12 of the Crimes (Administration of Sentences) Act 1999 provides for the engagement of private contractors by Corrective Services NSW to maintain certain correctional centres. In particular, see sections 237 and 238;

3. the management agreement between the Respondent and MTC Broadspectrum requires that MTC Broadspectrum comply with the PIPP Act in relation to its acts and practices;

4. the internal review was conducted by MTC Broadspectrum specifically engaged by the Respondent for that purpose, to act as the Respondent’s agent; and

5. the Assistant Commissioner of Corrective Services NSW:

1. oversees MTC Broadspectrum’s performance of its contractual obligations;

2. was kept abreast of and approved MTC Broadspectrum’s engagement;

3. has the requisite delegation to engage the services of MTC Broadspectrum in relation to the provision of services of this nature to the Respondent; and

4. was of the view “that it was not practicable for an employee of the Respondent to conduct the privacy internal review given a number of factors including the limitations on access to physical and electronic information and systems and the unique internal processes of MTC Broadspectrum, and the 60 day statutory framework”.

DQF’s case

43. DQF filed submissions in reply to the dismissal application. He submitted that the dismissal application:

is entirely based on my amended application of 5 May 2020 which the Applicant was not entitled to take into consideration until a decision was made by the Tribunal as to whether or not leave would be granted for late filing.

Additionally, the [Respondent] sought to make an application for dismissal before my amended application was filed and served. It is, in my view, clear that the Applicant had (an) other reason(s) for seeking dismissal during the case conference on 5 May 2020.

44. DQF maintains that the proceedings are not being maintained for an improper purpose. He denies that the proceedings a frivolous, vexatious, misconceived or lacking in substance. He submitted that he is aggrieved by the conduct of the Respondent and that he is entitled to a review of that conduct. He is not satisfied with the findings of the review and the action taken by the Respondent and submitted that, therefore, the conduct is reviewable by the Tribunal under section 55(1) of the PIPP Act.

45. He further submitted:

At no time I sought to make the preliminary issue/s part of the administrative review of conduct.

However, the Tribunal has options to deal with people who have failed to exercise in good faith a function conferred or imposed on the officer or employee by or under PPIP Act.

Those preliminary issues should not be taken into account because they are part of my amended application for which the Tribunal did not grant leave to extend the time for filing.

… [The Respondent] has not lodged material documents with the Tribunal as required by section 58 of the Administrative Decisions Review Act 1997. In my view, the [Respondent] is dishonestly seeking to conceal documents which would support my allegations.

Discussion

46. In this matter, the Respondent is asking the Tribunal to exercise the power to dismiss the application. Section 55(1)(b) of the NCAT Act provides that the Tribunal may dismiss proceedings that are “frivolous or vexatious or otherwise misconceived or lacking in substance”. The Tribunal may also dismiss the proceedings under section 55(1)(d) if there is no jurisdiction.

47. In Choi v Legal Aid Commission of NSW [2020] NSWCATAD 242 I considered the meaning of ‘misconceived’ and ‘lacking in substance’ at paragraphs [55] - [60]:

55.   The words “frivolous, vexatious, misconceived or lacking in substance” are well recognised legal terms that can be found in a broad spectrum of statutes dealing with summary dismissal in a wide variety of forums. In each case, it is important that the legal and legislative context in which those proceedings arise be taken into consideration.

…

57.   In Choi v University of Technology Sydney [2020] NSWCATAD 238, at paragraphs [22] – [24], Senior Member Mulvey considered the term “lacking in substance” and stated:

22. The term “lacking in substance” is not defined in the GIPA Act but has been interpreted in many cases including under the various federal and state anti-discrimination statutes: State Electricity Commission (Vic) v Rabel [1998] 1 VR 102 [31] – [45]; Rana v University of South Australia [2004] FCA 559; (2004) 136 FCR 344 at [10]; Gauci v Kennedy [2006] FCA 869 at [32]; Margan v University of Technology, Sydney [2003] NSWADTAP 65. See the discussion of these cases in Rees Rice and Allen, Australian Anti-Discrimination Law (2nd ed 2014, The Federation Press) at 776 to 781. The most commonly quoted definition is that an application will be lacking in substance if it is based on “an untenable proposition of law or fact”: State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at 108-109 per Ormiston J.

23. Sir Ronald Wilson said in Assal v Department of Health Housing and Community Services (1992) EOC 92-409, 78,897 at 78,900 that:

... it is unwise to postulate any rules intended to guide the exercise of the power in question. That exercise must be governed by the words of the statute itself in the context of the particular circumstances of the case.

24. In the context of the GIPA Act, if the Tribunal does not have jurisdiction or the application lacks merit because of a restriction or qualification on the applicant’s rights under the GIPA Act, then the application will be lacking in substance. For example, an application will be lacking in substance if it meets any of the tests in section 110(2), if there is an overriding public interest against disclosure or if the information is not held by the agency. But it must always be borne in mind that an applicant has an enforceable right to access government information and the discretions conferred by the Act are to “be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information”: GIPA Act, section 3(2)(b).

59.   In Alchin v Rail Corporation NSW [2012] NSWADT 142 Judicial Member Wright SC (as he then was) examined the meaning of the predecessor provision to section 55(1)(b) of the NCAT Act - section 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1977. As to the meaning of ‘misconceived’ and ‘lacking in substance’, he said:

25 The expressions used in section 92(1)(a)(i) of the ADA, namely "misconceived" and "lacking in substance" are found not only in the ADA but also in section 73(5)(g) of the ADT Act and similar legislation in other states. With respect to a similar provision found in the Equal Opportunity Act 1984 (Vic), Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at [14] said:

"misconceived" and "lacking in substance" have not, so far as I am aware, been used in this context before though each expression is commonly used by lawyers, the one connoting a misunderstanding of legal principle and the other connoting an untenable proposition of law or fact. If one may discern, in these provisions, an attempt to express the powers of Tribunals in non-technical language, then "misconceived" would represent a claim which did "not disclose a cause of action" ..., whereas "lacking in substance" might be seen to represent a claim where the defendant could obtain summary judgment ...

26 This approach of construing "misconceived" as including a misunderstanding of legal principle and "lacking in substance" as encompassing an untenable proposition of fact or law has been applied by the Tribunal in many decisions including, for example, Keene v Director-General, Department of Justice and Attorney-General [2011] NSWADT 59 at [14], McDonald v Central Coast Community Legal Centre [2008] NSWADT 96 at [22] and Stanborough v Woolworths Ltd [2005] NSWADT 203 at [50].

60.   These views from Alchin v Rail Corporation NSW have been cited in a number of decisions of this Tribunal. See for example BDK v Department of Education and Communities [2015] NSWCATAP 129.

48. In Valastar Pty Ltd v Chief Commissioner of State Revenue [2010] NSWADTAP 84, the Appeal Panel considered the issue of when proceedings are vexatious. Citing Attorney General v Wentworth (1988) 14 NSWLR 481 at 487-491 with approval, the Appeal Panel stated at paragraph [32]:

In the context of an issue whether a person should be found to be a vexatious litigant within s84(1) of the Supreme Court Act 1970, Attorney General v Wentworth (1988) 14 NSWLR 481 at 487-491 provides in our opinion instruction which also has some relevance for present purposes. In that case, Roden J held that no order should be made against the litigant involved under that provision but expressed his conclusions as to the relevant law at p 491 as follows: "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. ...

49. I agree with the Respondent’s submission that:

These proceedings in respect of the findings made in the final internal review report are frivolous and vexatious, because no result of these proceedings could affect the final outcome of the substantive matter or place the applicant in a better position or result in a more favourable outcome for the applicant than what the applicant is already in.

50. Section 55(2) of the PIPP Act sets out the types of orders that the Tribunal may make. As noted above, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders:

1. an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct;

2. an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice;

3. an order requiring the performance of an information protection principle or a privacy code of practice;

4. an order requiring personal information that has been disclosed to be corrected by the public sector agency;

5. an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant;

6. an order requiring the public sector agency not to disclose personal information contained in a public register;

7. such ancillary orders as the Tribunal thinks appropriate.

51. These proceedings, if continued, would not provide a more favourable outcome for DQF or put him in a more favourable position because:

1. The internal review already found a breach of section 12 of the PIPP Act, although it found no contravention of section 14;

2. A written apology has been provided to DQF and recommendations made for implementation within the Centre to minimise the risk of future similar breaches;

3. Despite not finding a contravention of section 14 in relation to DQF’s access to his legal papers, the internal review still made recommendations that MTC Broadspectrum review its processes and procedures for reception of inmate property;

4. The Applicant is no longer an inmate at the Centre;

5. Other actions contemplated by the above sections are not available or appropriate in relation to the reviewable conduct.

52. I note that pursuant to section 55(4A)(a) of the PIPP Act monetary compensation cannot be paid to an applicant in relation to conduct of a public sector agency that occurred in relation to and while the applicant was a convicted inmate.

53. I agree with the Respondent in regard to the issue of whether the internal review should have been conducted by an employee of the Respondent rather than MTC Broadspectrum. I am satisfied that it was not practicable for the review to be conducted by an employee or officer of the Respondent and that it was appropriate for MTC Broadspectrum to conduct the internal review. In my view the Respondent has complied with the requirements of section 53(4) of the PPIP Act. If I am wrong in that regard, the outcomes of the internal review render the issue moot.

52. I accept that the Respondent did not hold DQF’s access to his legal papers. I also accept that in the circumstances of this matter DQF’s personal property is not personal information for the purposes of the PPIP Act.

53. It follows that there is nothing further that can be achieved through these proceedings. I agree with the Respondent that the application should be dismissed under section 55(1) of the NCAT Act.

Orders

1. The application is dismissed.

**********

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: 22 November 2021