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DRP v Orange City Council

DRP v Orange City Council

Case [2020] NSWCATAD 220 7 September 2020

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Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: DRP v Orange City Council [2020] NSWCATAD 220
Hearing dates: On the papers
Date of orders: 7 September 2020
Decision date: 07 September 2020
Jurisdiction: Administrative and Equal Opportunity Division
Before: C Mulvey, Senior Member
Decision:
The application is dismissed.

Catchwords:
ADMINISTRATIVE REVIEW - personal information – review of conduct of agency - contravention of Privacy and Personal Information Protection Act 1998

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Environmental Planning & Assessment Act 1979
Government Information (Public Access) Act 2018 (NSW)
Government Information (Public Access) Regulation 2018 (NSW)
Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:
AF v Minister for Health (2002) NSWADTAP 16
AIN v Medical Council of New South Wales [2017] NSWCATAP 23
BN v Hornsby Shire Council (2012) NSWADT 165
Department of Education and Training v GA (No 3) [2004] NSWADTTAP 50
Donnellan v Ku-ring-gai Council (2013) NSWADT 115
KJ v Wentworth Area Health Service (2004) NSWADT 84
KP v Narrandera Shire Council (GD) [2011] NSWADTAP 15
McEwan v Port Stephens Council [2018] NSWCATAP 211
Nasr v State of New South Wales (2007) NSWCA 101
OD v Department of Education and Training (GD) [2005] NSWADTAP 74
Office of Finance and Services v APV & APW [2014] NSWCATAP 88
Privacy Commissioner v Telstra Corporation Limited [2017] FCAFC 4
Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98
SF v Shoalhaven City Council [2013] NSWADT 94
Turnbull v Strange [2018] NSWCA 157
Webb v Port Stephens Council (No 3) [2018] NSWCATAP 286

Category: Principal judgment
Parties: DRP (Applicant)
Orange City Council (Respondent)
Representation: Solicitors:
Applicant (Self Represented)
Marsdens Lawyers (Respondent)

File Number(s): 2019/00005701
Publication restriction: Pursuant to s64 of the Civil and Administrative Tribunal Act 2013, the publication or broadcast of the name of the applicant in these proceedings or reference to any information, picture or other material that identified the person or is likely to lead to the identification of the person is prohibited.

(THIS DECISION HAS BEEN AMENDED)

REASONS FOR DECISION

This is an application by DRP filed on 7 January 2019 for review of a decision made by the Orange City Council (the respondent) dated 30 November 2018 pursuant to s55 of the Privacy and Personal Information Protection Act 1998 (the PPIP Act).
DRP is a pseudonym used to anonymise the name of DRP pursuant to an order made under s64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act)
The proceedings relate to allegations that the respondent has breached the PPIP Act relating to the collection of, security and retention of, the accuracy and the limitation of use of DRP’s personal information.

Background to the conduct the subject of review

It is uncontroversial that DRP is a resident of the City of Orange, New South Wales. The respondent is the local government authority for the City of Orange.
On 6 September 2017, a Development Application (DA1) was submitted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DRP v Orange City Council

Details

AGLC: DRP v Orange City Council [2020] NSWCATAD 220
Case: [2020] NSWCATAD 220
Decision Date: 07 September 2020

CaseChat Overview and Summary

DRP brought an application to the Land and Environment Court of New South Wales for review of a decision by the Orange City Council in relation to the handling of personal information. The applicant claimed that the Council had contravened the Privacy and Personal Information Protection Act 1998 in the way it handled their personal information, and sought review of the Council's conduct under the Administrative Decisions (Judicial Review) Act 1977.

The court was required to determine whether the Council's handling of the applicant's personal information constituted a contravention of the Privacy and Personal Information Protection Act 1998. Additionally, the court needed to consider whether the Council's conduct warranted review under the Administrative Decisions (Judicial Review) Act 1977.

The court found that there was no evidence to support the applicant's claim that the Council had contravened the Privacy and Personal Information Protection Act 1998. The court also determined that the applicant's concerns did not warrant review of the Council's conduct under the Administrative Decisions (Judicial Review) Act 1977. The court held that the applicant had failed to demonstrate that the decision to handle their personal information in the way it was handled was unreasonable.

The application was dismissed, with the court ordering that the applicant pay the Council's costs of the proceedings.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

DRP v Orange City Council [2020] NSWCATAD 220

Most Recent Citation

McEwan v Port Stephens Council [2021] NSWCATAD 110

Cases citing this decision · 8 of 8 shown

Purcell v Department of Climate Change, Energy the Environment and Water
[2025] NSWCATAD 192 Para 54

…The following observations of the Tribunal in DRP v Orange City Council [2020] NSWCATAD 220 as to telephone numbers also have a bearing on the question at issue:…
GTY v Secretary, Department of Education
[2025] NSWCATAD 140 Para 86

…In DRP v Orange City Council [2020] NSWCATAD 220, Senior Member Mulvey observed:…
Glass v Cessnock City Council
[2024] NSWCATAD 292 Para 88

…I note that in the case of DRP v Orange City Council [2020] NSWCATAD 220, in respect of information contained within a DA submission / objection, the information of the objector was not personal information. That was because the Tribunal formed a view (relying in part on Donnellan v Ku-ring-gai Council (2013) NSWADT 1…
Streater v Tamworth Regional Council
[2024] NSWCATAD 195 Para 46

…The following observations of the Tribunal in DRP v Orange City Council [2020] NSWCATAD 220 as to telephone numbers also have a bearing on the question at issue:…
Stalvies v Snowy Monaro Regional Council
[2023] NSWCATAD 166 Para 50

…In DRP v Orange City Council [2020] NSWCATAD 220, I set out the following with respect to what constitutes ‘personal information’ at [38]-[44]:…
Webb v iCare NSW
[2023] NSWCATAD 111

…[2006] NSWADTAP 66 Director General, Department of Education and Training v MT (2006) 67 NSWLR 237; [2006] NSWCA 270 DRP v Orange City Council [2020] NSWCATAD 220 EFL v Secretary, Department of Education [2020] NSWCATAD 239 EG v Police Service (NSW) [2003] NSWADT 150 Federal Commissioner of Taxation v Consolidated Me…
FHH v Port Stephens Council
[2023] NSWCATAD 101 Para 66

…the parties and that the information is therefore not ‘about an individual’ consistent with the Tribunal’s finding in DRP v Orange City Council [2020] NSWCATAD 220.…
McEwan v Port Stephens Council
[2021] NSWCATAD 110 Para 3

…o lessen any obligations under the Government Information (Public Access) Act 2009 in respect of a public sector agency. In DRP v Orange City Council [2020] NSWCATAD 220 ( DRP ), the Tribunal held at [47]-[50]:…

View all 8 citing cases →

Cases cited in this decision · 13 of 13 shown

DSG v Department of Education
[2019] NSWCATAD 182 Para 107

…ched to the Report. It did not form part of the Internal Review. The matter is outside of the scope of this review (see DSG v Department of Education [2019] NSWCATAD 182 as [101]).…
Turnbull v Strange
[2018] NSWCA 157 Para 43

…The Supreme Court of New South Wales Court of Appeal found in Turnbull v Strange [2018] NSWCA 157…
Donnellan v Ku-ring-gai Council
[2013] NSWADT 115 Para 44

…he mobile, home and work telephone numbers, and email addresses of an objector to a prospective development application was personal information (see Donnellan v Ku-ring-gai Council (2013) NSWADT 115 (at [39]-[43]). However, not all of the information contained in emails by objectors to the agency is their personal information. Where in…
SF v Shoalhaven City Council
[2013] NSWADT 94 Para 80

…In SF v Shoalhaven City Council [2013] NSWADT 94 at 147 (citing AF v Minister for Health (2002) NSWADTAP 16 at [94]), the Tribunal found that the aim of IPP 3 is to ensure that the subject of information collection is made aware of:…
Flack v Commissioner of Police, New South Wales Police
[2011] NSWADT 286 Para 74

…the exemptions from the IPPs in Division 3 of Part 2 of the PPIP Act (specific exemptions from principles) ( Flack v Commissioner of Police (NSW) [2011] NSWADT 286 at 44 to 45).…
Richards v Commissioner, Department of Corrective Services
[2011] NSWADT 98 Para 73

…y disclosed, but whether the information it contains has been publicly disclosed ( Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 at [40]).…
KP v Narrandera Shire Council
[2011] NSWADTAP 15 Para 3

…. Where left in a state of uncertainty in relation to a fact in issue, the fact should be decided against DRP (see KP v Narrandera Shire Council (GD) [2011] NSWADTAP 15 at [31]. It is not in dispute that the Tribunal has jurisdiction to determine this matter pursuant to s63 of the Administrative Decisions Review Act…
Nasr v State of New South Wales
[2007] NSWCA 101 Para 74

…ce of disclosure of information is making known to a person information that the person to whom the disclosure is made did not previously know’ ( Nasr v State of New South Wales (2007) NSWCA 101 at 127).…
OD v Department of Education and Training (GD)
[2005] NSWADTAP 74 Para 91

…is the subject of the internal review application and any subsequent application to the Tribunal (see OD v Department of Education and Training (GD) [2005] NSWADTAP 74 at [13] to [14]).…
Office of Finance and Services v APV and APW
[2014] NSWCATAP 88 Para 41

…In Office of Finance and Services v APV & APW [2014] NSWCATAP 88 at [4], the Appeal Panel found that the words ‘whose identity is apparent or can be reasonably ascertained from the information or opinion’ do not mean that the individual’s identity must be apparent or reasonably ascertainable ‘solely from the informat…
Privacy Commissioner v Telstra Corporation Limited
[2017] FCAFC 4 Para 42

…The Full Federal Court in Privacy Commissioner v Telstra Corporation Limited [2017] FCAFC 4 found at [63] in applying the definition of ‘personal information’ in the Privacy Act 1988 (Cth):…
McEwan v Port Stephens Council
[2018] NSWCATAP 211 Para 67

…The Appeal Panel of this Tribunal in McEwan v Port Stephens Council [2018] NSWCATAP 211 (cited in Webb v Port Stephens Council (No 3) [2018] NSWCATAP 286 at [70]):…
[2018] NSWCATAP 286
[2018] NSWCATAP 286 Para 67

…The Appeal Panel of this Tribunal in McEwan v Port Stephens Council [2018] NSWCATAP 211 (cited in Webb v Port Stephens Council (No 3) [2018] NSWCATAP 286 at [70]):…

Legislation cited in this decision · 9

Administrative Decisions Review Act 1997 (NSW)
1 mention (from Para 3)
Administrative Decisions Tribunal Act 1997 (NSW)
1 mention (from Para 2)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 2)
Environmental Planning and Assessment Act 1979 (NSW)
1 mention
Government Information (Public Access) Act 2009 (NSW)
1 mention
Health Records and Information Privacy Act 2002 (NSW)
1 mention
Privacy Act 1988 (Cth)
1 mention (from Para 42)
Privacy and Personal Information Protection Act 1988 (NSW)
1 mention
Privacy and Personal Information Protection Act 1998 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	DRP v Orange City Council [2020] NSWCATAD 220
Hearing dates:	On the papers
Date of orders:	7 September 2020
Decision date:	07 September 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Mulvey, Senior Member
Decision:	The application is dismissed.
Catchwords:	ADMINISTRATIVE REVIEW - personal information – review of conduct of agency - contravention of Privacy and Personal Information Protection Act 1998
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Environmental Planning & Assessment Act 1979 Government Information (Public Access) Act 2018 (NSW) Government Information (Public Access) Regulation 2018 (NSW) Privacy and Personal Information Protection Act 1998 (NSW)
Cases Cited:	AF v Minister for Health (2002) NSWADTAP 16 AIN v Medical Council of New South Wales [2017] NSWCATAP 23 BN v Hornsby Shire Council (2012) NSWADT 165 Department of Education and Training v GA (No 3) [2004] NSWADTTAP 50 Donnellan v Ku-ring-gai Council (2013) NSWADT 115 KJ v Wentworth Area Health Service (2004) NSWADT 84 KP v Narrandera Shire Council (GD) [2011] NSWADTAP 15 McEwan v Port Stephens Council [2018] NSWCATAP 211 Nasr v State of New South Wales (2007) NSWCA 101 OD v Department of Education and Training (GD) [2005] NSWADTAP 74 Office of Finance and Services v APV & APW [2014] NSWCATAP 88 Privacy Commissioner v Telstra Corporation Limited [2017] FCAFC 4 Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 SF v Shoalhaven City Council [2013] NSWADT 94 Turnbull v Strange [2018] NSWCA 157 Webb v Port Stephens Council (No 3) [2018] NSWCATAP 286
Category:	Principal judgment
Parties:	DRP (Applicant) Orange City Council (Respondent)
Representation:	Solicitors: Applicant (Self Represented) Marsdens Lawyers (Respondent)
File Number(s):	2019/00005701
Publication restriction:	Pursuant to s64 of the Civil and Administrative Tribunal Act 2013, the publication or broadcast of the name of the applicant in these proceedings or reference to any information, picture or other material that identified the person or is likely to lead to the identification of the person is prohibited.