DXD v NSW Department of Justice

[2019] NSWCATAD 214

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DXD v NSW Department of Justice [2019] NSWCATAD 214
Hearing dates:	On the papers
Date of orders:	21 October 2019
Decision date:	21 October 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	P H Molony, Senior Member
Decision:	(1)   Pursuant to s 50(2) the Tribunal dispenses with a hearing in this matter. (2)   The application is dismissed for want of jurisdiction.
Catchwords:	Administrative Law – privacy and personal information – review of conduct – jurisdiction -whether conduct under review relates to the exercise of a judicial function
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Privacy and Personal Information Protection Act 1998 Residential Tenancies Act 2010
Cases Cited:	BCR v Consumer Trader and Tenancy Tribunal [2104] NSWADT 79 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Category:	Principal judgment
Parties:	DXD (Applicant) NSW Department of Justice (Respondent)
Representation:	Solicitors: Applicant (Self Represented) T Long (Legal Officer) (Respondent)
File Number(s):	2019/00190084
Publication restriction:	Non-publication order under s 64(1) of the e Civil and Administrative Tribunal Act 2013 made on 23 July 2019 prohibiting publication of the applicant’s name.

REASONS FOR DECISION

Background

1. These reasons concern an application for review of conduct under the Privacy and Personal Information Protection Act 1998 (NSW) (the PPIPA Act).

2. The applicant is DXD, whose real name is the subject of a non-publication order made under s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) made on 23 July 2019. That order extends to the naming of people, places or things that may reveal the identity of the applicant. As a result, certain names have not been used.

3. The respondent is the Department of Justice.

4. At a case conference held on 23 July 2019 Senior Member Higgins noted that:

The parties agree that the conduct the subject of this application is the refusal of the Tribunal in the Consumer and Commercial Division to amend order 2 of its decision of 13 December 2018 in file no RT [XXXXX ]. The amendment sought by the applicant was the amendment of the name of the respondent from [X Superannuation] to [A and B atf X Superannuation] to [X Superannuation Fund] as this was the entity with whom she had entered a residential tenancy agreement.

The Tribunal explained to the applicant that 'atf' stands for 'as trustee for'. The applicant presses her application.

The issues for determination are:

1. Whether the conduct of which the applicant complains is conduct falling within s 6 of the Privacy and Personal Information Protection Act 1998 and not subject to that Act.

2.   In the alternative, whether the respondent was in any event correctly named and whether the conduct is personal information of the applicant.

5. The words through which I have placed a line through contain an obvious typographical error. If they are disregarded the notation makes sense, and reflects what I understand the conduct in issue to be.

6. The RT file to which the notation refers were proceedings in the Commercial and Consumer Division of the Tribunal (the CCD) in which DXD, as a tenant, commenced proceedings under the Residential Tenancies Act 2010 (NSW) (the RT Act) against her landlord, who she named as [X Superannuation], seeking to have a notice of termination notice declared retaliatory.

7. That application was heard in the CCD on 13 December 2018. At the conclusion of the hearing the Tribunal made the following orders and published short reasons for decision:

1.   The application is dismissed because:

•   Having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established.

2,   The respondent's name [X Superannuation], is amended to [A and B atf X Superannuation].

The reasons did not explain why the Tribunal made order 2.

8. DXD sought further reasons for order 2 but was denied them.

9. On 6 March 2019 DXD filed an application in the CCD in which she sought to have the all the orders made on 13 December 2018 set aside, or order 2 made that day set aside, both under s 53(4) of the CAT Act. Section 53 provides:

(1)   The Tribunal may, in any proceedings, make any amendments to any document (for example, an application or appeal) filed in connection with the proceedings that the Tribunal considers to be necessary in the interests of justice.

(2)   Any such amendment may be made:

(a)   at any stage of the proceedings, and

(b)   on such terms as the Tribunal thinks fit,

but may only be made after giving notice to the party to whom the amendment relates.

(3)   If a provision of this Act or the procedural rules is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal determines otherwise.

(4)   The Tribunal may, however, in dealing with any such irregularity, wholly or partly set aside the proceedings or a decision in the proceedings.

10. On 16 April 2019 that application was dismissed. The Tribunal, constituted by a different member, provided the following reasons for that dismissal:

The Tribunal made orders in the matter on 13 December 2018. The Tribunal dismissed the application and amended the respondents name. The applicant seeks that the proceedings of 13 December 2018 be set aside or in the alternative order 2 made on that day amending the name of the respondent be set aside.

The Tribunal called for the parties to provide further submissions in the matter. Neither party has provided any further submissions and the Tribunal is satisfied to dispense with an oral hearing.

The Tribunal finds no basis for the making of the order as sought by the applicant. [Z Superannuation] is not a legal entity and the Tribunal accepts that the name of the respondent would have needed to be amended to a suitable entity. The applicant alleges her views were not sought at the hearing in relation to the amendment. The Tribunal has not been provided with a copy of the transcript of hearing. If the applicant is of the view that she was denied procedural fairness at the hearing then that is a matter that will need to be tested on Appeal . The Tribunal declines to make the orders sought.

11. DXD then lodged complaints about the Tribunal’s decision with the Tribunal in an effort to have the case name amended. These were unsuccessful. She was told that her remedy was by way of appeal.

12. On 5 June 2019 DXD made a complaint to the Department of Justice (the respondent) in which she said that, as a result of the Tribunal’s decision to amend the name of the respondent, the Tribunal’s file (and the Tribunal’s case management system) carried incorrect information, being an incorrect opinion about the name of her landlord. This she alleged breached the information protection principles. She characterised the name of the respondent in the Tribunal file as being an opinion that contained “incorrect information about me.” She requested that the respondent amend that opinion.

13. In a decision dated 14 June 2019 the respondent treated that complaint as a request for internal review under s 53 of the PPIPA Act. The respondent found that it did not have jurisdiction to conduct such a review as the conduct in issue concerned the manner in which the Tribunal exercised its judicial functions.

14. On 19 June 2019 the applicant filed an administrative review application in the Administrative and Equal Opportunity Division of the Tribunal (the AEOD) seeking administrative review of the respondent’s decision.

15. That application was listed before Senior Member Higgins on 23 July 2019, when she made procedural directions and the notation quoted at paragraph 4 above. It is clear from that notation the conduct in issue is, “the refusal of the Tribunal in the Consumer and Commercial Division to amend order 2 of its decision of 13 December 2018.”

16. In submissions both parties agreed that this is an appropriate matter to determine on the papers.

17. The application has now been referred to me to determine without a hearing.

Material before the Tribunal

18. In considering this application I have read and had regard to the following materials:

1. The applicant’s administrative review application received 19 June 2019.

2. Applicant’s submissions and documents filed 2 September 2019.

3. Respondent’s submissions with index and attachments.

Should the application be determined without a hearing?

19. Section 50 (2) to (4) of the CAT Act provide:

(2)   The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

(3)   The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first:

(a)   afforded the parties an opportunity to make submissions about the proposed order, and

(b)   taken any such submissions into account.

(4)   The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

20. In this case both parties have indicated their agreement to the application being determined on the papers. Having reviewed all the materials I am satisfied that this is matter than can be adequately determined, in the absence of the parties, by considering the materials lodged by them. I therefore dispense with a hearing.

21. Section 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) says that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Commissioner, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

The Judicial Functions issue

22. Section 6 of the PPIPA Act relevantly provides:

(1)   Nothing in this Act affects the manner in which a court or tribunal, or the manner in which the holder of an office relating to a court or tribunal, exercises the court’s, or the tribunal’s, judicial functions.

…

(3)   In this section, judicial functions of a court or tribunal means such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it, …

23. Section 3 provides, among other things, that:

function includes a power, authority or duty.

24. An application for internal review under Part 5 of the PPIPA Act is a review of conduct: s 53(1). Section 52 relevantly provides:

(1)   This Part applies to the following conduct:

(a)   the contravention by a public sector agency of an information protection principle that applies to the agency,

(b)   the contravention by a public sector agency of a privacy code of practice that applies to the agency,

(c)   the disclosure by a public sector agency of personal information kept in a public register.

(2)   A reference in this Part to conduct includes a reference to alleged conduct.

25. The conduct in issue here, as agreed by the parties, is the refusal of the Tribunal to amend the name of the respondent in order 2 of its orders made on 13 December 2019. That refusal took place on 14 April 2019 when the Tribunal dismissed, and gave reasons for dismissing, DXD’s application to set aside the order(s) made on 14 December 2018. The refusal to amend or set aside that order was a decision of the Tribunal made on her application to set aside.

26. I note that the conduct identified by the parties did not result in an alteration of the Tribunal record. The correspondence that DXD says contains an incorrect opinion (about who she named as respondent) is the result of the initial amendment order: not of the dismissal of her application to set aside.

27. In the present case s 53 of the CAT Act gives the Tribunal power to amend (or refuse to amend) documents, and to set aside proceedings or decisions made in proceedings, in the in the event of procedural irregularities. Section 53 of the CAT Act provides:

(1)   The Tribunal may, in any proceedings, make any amendments to any document (for example, an application or appeal) filed in connection with the proceedings that the Tribunal considers to be necessary in the interests of justice.

(2)   Any such amendment may be made:

(a)   at any stage of the proceedings, and

(b)   on such terms as the Tribunal thinks fit,

but may only be made after giving notice to the party to whom the amendment relates.

(3)   If a provision of this Act or the procedural rules is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal determines otherwise.

(4)   The Tribunal may, however, in dealing with any such irregularity, wholly or partly set aside the proceedings or a decision in the proceedings.

28. Further, as the respondent points out, s 188 of the RT Act gives the Tribunal power to “make any ancillary order as it thinks appropriate.” An order amending the name of party in tenancy proceedings, or refusing to do so, is clearly an ancillary order.

29. The functions of the CCD of the Tribunal are set in Schedule 4 of the CAT Act. Clause 3(1) provides that the CCD has the functions of the Tribunal under the RT Act, among others. Clause 3(2) provides that this extends to:

(b) any functions conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of proceedings for the exercise of functions allocated by that subclause (including the making of ancillary and interlocutory decisions of the Tribunal).

30. In her submissions, at paragraph 34, DXD argued that the initial amendment of the respondent’s name by Tribunal order on 13 December 2018, and the subsequent order of 14 April 2019 dismissing her application to set aside those order(s), were not an exercise by the Tribunal of its judicial functions. She wrote:

Judicial functions have boundaries. The tribunal is allowed to use its power or authority, and required to perform its duty within the boundaries. All actions outside the allowed boundaries does not constitute judicial functions, even if they are performed at the hearing.

As proved in Point 25, the amendment of the Respondent's name and refusal to amend it back to its original version was not a mistake, but a deliberate act of falsifying the Respondent identity.

Falsifying information is not a part of judicial functions, nor it can be considered as a manner in which the tribunal exercises the tribunal's judicial functions.

Consequently, the Tribunal was not exercising the tribunal's judicial functions when it was amending the Respondent's name, and later refusing to amend it back to its original version.

31. The submission also makes it clear that DXD accepts that amending or setting aside an application or record (or refusing to do so) is part of the judicial functions of the Tribunal. DXD seeks to argue that the Tribunal when dismissing her application to set aside (and when making the initial amendment order) was motivated by an improper and unlawful purpose, which removed the decisions from the realm of the exercise of a judicial function.

32. I do not accept this proposition. An order made within power cannot be simply disregarded because a party to it considers that the decision maker was motivated to make it by an improper or unlawful purpose. This, as the respondent points out in its submissions, is one of the mischiefs that s 6 is designed to avoid in the context of the PPIPA Act.

33. In my view it is clear that the refusal of the Tribunal in the CCD to set aside order 2 of its decision of 13 December 2018 was made in the exercise of its judicial functions. The naming of parties bound by a determination is a central and important feature of any adjudicated decision. The consideration of DXD’s application to set aside the decision, required determination by the Tribunal and related to proceedings before it: BCR v Consumer Trader and Tenancy Tribunal [2104] NSWADT 79 at [42].

34. As a result, s 6 of the PPIPA Act provides that the PPIPA Act has no application in respect the conduct complained of by DXD, because that conduct was undertaken in the exercise of a judicial function of the CCD.

35. The AEOD therefore has no jurisdiction to review that conduct under the PPIPA Act.

36. DXD’s remedy is by way of internal appeal.

Conclusion

37. As the Tribunal has no jurisdiction under the PPIPA Act with respect to DXD’s application, I have no power to determine the alternative issue identified by the parties, and it is not necessary to do so.

38. The Tribunal makes the following orders:

1. Pursuant to s 50(2) the Tribunal dispenses with a hearing in this matter.

2. The application is dismissed for want of jurisdiction.

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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: 21 October 2019