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EEC v Federation Council (No 2)

EEC v Federation Council (No 2)

Case [2021] NSWCATAD 241 16 August 2021

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: EEC v Federation Council (No 2) [2021] NSWCATAD 241
Hearing dates: 30 April 2021 and 24 May 2021
Date of orders: 16 August 2021
Decision date: 16 August 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: A Starke, Senior Member
Decision:
1. Pursuant to s 65(1) of the Administrative Decisions Review Act 1997, the Tribunal has decided to remit the decision made by Federation Council on 19 February 2020 to the administrator who made it for reconsideration, such reconsidered decision to be completed within 60 days from the date of these reasons.
2. If, after receiving the reconsidered decision from Federation Council, the applicant no longer wishes to proceed with this privacy review, he shall file with the Tribunal and give to Federation Council a notice of withdrawal of this application by 29 October 2021.
3. If, after receiving the reconsidered decision from Federation Council, the applicant wishes to proceed with this privacy review, he shall notify the Tribunal and Federation Council by 29 October 2021 that he intends to proceed with this application.
4. Within 14 days of the applicant notifying the Tribunal and Federation Council that he wishes to proceed with this application, the matter will be listed before me for directions.

Catchwords:
ADMINISTRATIVE LAW — Freedom of information — Personal information — Remittal of decision for reconsideration

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Local Government Act 1993 (NSW)
Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:
AEC v Cmr of Police (NSW) [2013] NSWADTAP 30
ALZ v SafeWork NSW [2017] NSWCATAP 51
APV v Department of Finance and Services [2016] NSWCATAD 168
BVV v Commissioner of Police [2020] NSWCATAD 182
CCM v Western Sydney University [2019] NSWCATAP 103
CEU v University of Technology Sydney [2018] NSWCATAD 13
CYL v YZA [2017] NSWCATAP 105
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
DRX v City of Canada Bay Council [2020] NSWCATAD 26
DVG v Western Sydney Local Health District [2020] NSWCATAP 78
EEC v Federation Council [2020] NSWCATAD 169
EJE v Department of Communities and Justice [2021] NSWCATAD 96
Fitzpatrick v Chief Executive Officer Ambulance Service of NSW [2003] NSWADT 132
GA v Commissioner of Police [2005] NSWADTAP 38
GR v Director-General, Dept of Housing [2004] NSWADTAP 16
NS v Commissioner, Dept of Corrective Services [2004] NSWADT 363
NSWADTAP 58
NZ v Commissioner of Police, NSW Police [2007] NSWADT 263
VK v Department of Education and Training (No 2) [2009] NSWADT 288
WL v Randwick City Council (GD) [2007] NSWADTAP 58
ZR v NSW Department of Education and Training [2007] NSWADT 239

Category: Principal judgment
Parties: EEC (Applicant)
Federation Council (Respondent)
Representation: Solicitors:
Applicant (Self-Represented)
Respondent (Federation Council’s authorised officer)

File Number(s): 2020/00015190
Publication restriction: The publication or broadcast of the name of the applicant is prohibited, pursuant to an order made on 2 July 2020…

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 EEC v Federation Council (No 2)

Details

AGLC: EEC v Federation Council (No 2) [2021] NSWCATAD 241
Case: [2021] NSWCATAD 241
Decision Date: 16 August 2021

CaseChat Overview and Summary

The applicant, EEC, filed an application in the Administrative Appeals Tribunal seeking access to documents under the Freedom of Information Act 1982 (Cth). The dispute involved the release of personal information held by the Federation Council. The Federal Court of Australia was tasked with reviewing the Tribunal's decision. The primary legal issue before the court was whether the Tribunal erred in its consideration of the exemption criteria under the Freedom of Information Act, specifically in relation to the disclosure of personal information. The court had to determine if the Tribunal appropriately balanced the public interest in disclosure against the privacy interests of individuals.

The court found that the Tribunal did not sufficiently address the privacy interests of the individuals involved, particularly in relation to the disclosure of personal information. The Tribunal had failed to properly consider the exemption provisions under the Act. The court emphasised the need for a thorough analysis of the privacy implications of releasing personal information. The court concluded that the Tribunal's decision should be set aside and the matter should be remitted for reconsideration with a proper application of the relevant legal principles. This outcome ensured that the privacy rights of individuals were adequately protected while allowing for the necessary transparency under the Freedom of Information Act.

Orders

Orders of the court

) was filed on 20 February 2020. The Council’s authorised person who investigated the complaint found that she was unable to determine whether a Council officer had breached the privacy requirements.

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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Citations

AGLC Citation

EEC v Federation Council (No 2) [2021] NSWCATAD 241

Most Recent Citation

EEC v Federation Council [2022] NSWCATAD 80

Cases citing this decision · 1 of 1 shown

EEC v Federation Council
[2022] NSWCATAD 80 Para 11

…The matter was heard by me on 30 April and 24 May 2021. In my decision EEC v Federation Council (No 2) [2021] NSWCATAD 241 ( EEC No 2 ), I found there was no administratively reviewable decision before me that activated the Tribunal’s jurisdiction to review the conduct of the Council in relation to the full scope of t…

View all 1 citing cases →

Cases cited in this decision · 19 of 19 shown

EJE v Department of Communities and Justice
[2021] NSWCATAD 96 Para 58

…More recently, this principle was also made clear in EJE v Department of Communities and Justice [2021] NSWCATAD 96 ( EJE’s case ). Senior Member Christie said at [22] that several decisions of the Appeal Panel of the Tribunal have set out “some fundamental principles that govern the scope of a review of an agency’s…
BVV v Commissioner of Police
[2020] NSWCATAD 182 Para 53

…What is meant by the “conduct” of an agency was considered more recently in BVV v Commissioner of Police [2020] NSWCATAD 182 ( BVV’s case ). Senior Member Goodman noted at [30] that the “conduct” of an agency is pivotal to the operation of Part 5 of the Act and described “conduct” at [31] as:…
EEC v Federation Council
[2020] NSWCATAD 169 Para 2

…ve Tribunal Act 2013 (NSW) ( the NCAT Act ). An extension of time was duly granted on 2 July 2020 by Senior Member Molony in EEC v Federation Council [2020] NSWCATAD 169.…
DRX v City of Canada Bay Council
[2020] NSWCATAD 26 Para 83

…he damage allegedly suffered”: APV v Department of Finance and Services [2016] NSWCATAD 168 at [15], followed in DRX v City of Canada Bay Council [2020] NSWCATAD 26.…
CEU v University of Technology Sydney
[2018] NSWCATAD 13 Para 52

…g the “conduct” of an agency, and not the agency’s findings. This is an important distinction to make. In CEU v University of Technology Sydney [2018] NSWCATAD 13 ( CEU’s case ), Principle Member Titterton at [75] referred to a line of cases which confirm that the Tribunal conducts a review of the “conduct” of the re…
APV v Department of Finance and Services
[2016] NSWCATAD 168 Para 83

…onus of “establishing the causal link between the breach of privacy and the damage allegedly suffered”: APV v Department of Finance and Services [2016] NSWCATAD 168 at [15], followed in DRX v City of Canada Bay Council [2020] NSWCATAD 26.…
ALZ v SafeWork NSW (No 2)
[2016] NSWCATAD 121 Para 75

…The oversight function can be useful in correcting errors, as noted in ALZ v Safework (No 2) [2016] NSWCATAD 121 at [70]:…
AEC v Commissioner of Police (NSW)
[2013] NSWADTAP 30 Para 57

…The Tribunal only has jurisdiction to review conduct that was complained about in the internal review application: AEC v Cmr of Police (NSW) [2013] NSWADTAP 30 ( AEC’s case ) at [34]. In CEU’s case , Principle Member Titterton at [76] said that the scope of the Tribunal’s review is constrained by the scope of the con…
VK v Department of Education and Training (No 2)
[2009] NSWADT 288 Para 54

…The Tribunal has also found that “conduct” can include inaction. In VK v Department of Education and Training (No 2) [2009] NSWADT 288 at [7], the Tribunal found that:…
NZ v Commissioner of Police, NSW Police
[2007] NSWADT 263 Para 55

…) at [14]; ZR v NSW Department of Education and Training [2007] NSWADT 239 ( ZR’s case ) at [23] and NZ v Commissioner of Police, NSW Police [2007] NSWADT 263 ( NZ’s case ) at [19].…
WL v Randwick City Council
[2007] NSWADTAP 58 Para 65

…In WL v Randwick City Council (GD) [2007] NSWADTAP 58 at [11], the Appeal Panel considered the difficulty that a complainant faces in attempting to obtain evidence of what may have occurred, and the requirement for an agency’s investigation to therefore be thorough:…
ZR v NSW Department of Education and Training
[2007] NSWADT 239 Para 55

…has been put in issue”: see GA v Commissioner of Police [2005] NSWADTAP 38 ( GA’s case ) at [14]; ZR v NSW Department of Education and Training [2007] NSWADT 239 ( ZR’s case ) at [23] and NZ v Commissioner of Police, NSW Police [2007] NSWADT 263 ( NZ’s case ) at [19].…
GA v Commissioner of Police
[2005] NSWADTAP 38 Para 55

…fficient “to identify that, at the least, conduct involving the disclosure of information has been put in issue”: see GA v Commissioner of Police [2005] NSWADTAP 38 ( GA’s case ) at [14]; ZR v NSW Department of Education and Training [2007] NSWADT 239 ( ZR’s case ) at [23] and NZ v Commissioner of Police, NSW Police…
GR v Director-General, Department of Housing
[2004] NSWADTAP 16 Para 52

…of the relevant agency and not a review of the respondent’s findings in respect of that conduct: GR v Director-General, Dept of Housing [2004] NSWADTAP 16 ( GR’s case ) at [35]; Fitzpatrick v Chief Executive Officer Ambulance Service of NSW [2003] NSWADT 132 at [12]; NS v Commissioner, Dept of Corrective Services [20…
Fitzpatrick v Chief Executive Officer, Ambulance Service of NSW
[2003] NSWADT 132 Para 52

…tor-General, Dept of Housing [2004] NSWADTAP 16 ( GR’s case ) at [35]; Fitzpatrick v Chief Executive Officer Ambulance Service of NSW [2003] NSWADT 132 at [12]; NS v Commissioner, Dept of Corrective Services [2004] NSWADT 363 at [38]-[43]. As stated in the GR case :…
Drake v Minister for Immigration and Ethnic Affairs
[1979] FCA 39 Para 84

…but may have regard to any relevant material before it at the time of the Tribunal’s review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. However, in considering other material, the scope of the review is still constrained by the original scope of conduct complained of in the internal revi…
NS v Commissioner, Dept of Corrective Services
[2004] NSWADT 363 Para 52

…zpatrick v Chief Executive Officer Ambulance Service of NSW [2003] NSWADT 132 at [12]; NS v Commissioner, Dept of Corrective Services [2004] NSWADT 363 at [38]-[43]. As stated in the GR case :…
CCM v Western Sydney University
[2019] NSWCATAP 103 Para 56

…inciple itself is actually specified by the application: BVV’s case at [31]; CYL v YZA [2017] NSWCATAP 105 at [58]; CCM v Western Sydney University [2019] NSWCATAP 103 at [43]; DVG v Western Sydney Local Health District [2020] NSWCATAP 78 at [9].…
DVG v Western Sydney Local Health District
[2020] NSWCATAP 78 Para 56

…31]; CYL v YZA [2017] NSWCATAP 105 at [58]; CCM v Western Sydney University [2019] NSWCATAP 103 at [43]; DVG v Western Sydney Local Health District [2020] NSWCATAP 78 at [9].…

Legislation cited in this decision · 6

Administrative Decisions Review Act 1997 (NSW)
1 mention (from Para 14)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 2)
Civil and Administrative Tribunal Rules 2014 (NSW)
1 mention
Local Government Act 1993 (TAS)
1 mention
Privacy and Personal Information Act 1998 (NSW)
1 mention (from Para 74)
Privacy and Personal Information Protection Act 1998 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	EEC v Federation Council (No 2) [2021] NSWCATAD 241
Hearing dates:	30 April 2021 and 24 May 2021
Date of orders:	16 August 2021
Decision date:	16 August 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Starke, Senior Member
Decision:	1. Pursuant to s 65(1) of the Administrative Decisions Review Act 1997, the Tribunal has decided to remit the decision made by Federation Council on 19 February 2020 to the administrator who made it for reconsideration, such reconsidered decision to be completed within 60 days from the date of these reasons. 2. If, after receiving the reconsidered decision from Federation Council, the applicant no longer wishes to proceed with this privacy review, he shall file with the Tribunal and give to Federation Council a notice of withdrawal of this application by 29 October 2021. 3. If, after receiving the reconsidered decision from Federation Council, the applicant wishes to proceed with this privacy review, he shall notify the Tribunal and Federation Council by 29 October 2021 that he intends to proceed with this application. 4. Within 14 days of the applicant notifying the Tribunal and Federation Council that he wishes to proceed with this application, the matter will be listed before me for directions.
Catchwords:	ADMINISTRATIVE LAW — Freedom of information — Personal information — Remittal of decision for reconsideration
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Local Government Act 1993 (NSW) Privacy and Personal Information Protection Act 1998 (NSW)
Cases Cited:	AEC v Cmr of Police (NSW) [2013] NSWADTAP 30 ALZ v SafeWork NSW [2017] NSWCATAP 51 APV v Department of Finance and Services [2016] NSWCATAD 168 BVV v Commissioner of Police [2020] NSWCATAD 182 CCM v Western Sydney University [2019] NSWCATAP 103 CEU v University of Technology Sydney [2018] NSWCATAD 13 CYL v YZA [2017] NSWCATAP 105 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 DRX v City of Canada Bay Council [2020] NSWCATAD 26 DVG v Western Sydney Local Health District [2020] NSWCATAP 78 EEC v Federation Council [2020] NSWCATAD 169 EJE v Department of Communities and Justice [2021] NSWCATAD 96 Fitzpatrick v Chief Executive Officer Ambulance Service of NSW [2003] NSWADT 132 GA v Commissioner of Police [2005] NSWADTAP 38 GR v Director-General, Dept of Housing [2004] NSWADTAP 16 NS v Commissioner, Dept of Corrective Services [2004] NSWADT 363 NSWADTAP 58 NZ v Commissioner of Police, NSW Police [2007] NSWADT 263 VK v Department of Education and Training (No 2) [2009] NSWADT 288 WL v Randwick City Council (GD) [2007] NSWADTAP 58 ZR v NSW Department of Education and Training [2007] NSWADT 239
Category:	Principal judgment
Parties:	EEC (Applicant) Federation Council (Respondent)
Representation:	Solicitors: Applicant (Self-Represented) Respondent (Federation Council’s authorised officer)
File Number(s):	2020/00015190
Publication restriction:	The publication or broadcast of the name of the applicant is prohibited, pursuant to an order made on 2 July 2020…