EHW v Secretary, Department of of Education

[2021] NSWCATAD 225

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EHW v Secretary, Department of of Education [2021] NSWCATAD 225

Hearing dates:

15 June 2021

Date of orders:

02 August 2021

Decision date:

02 August 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

P H Molony, Senior Member

Decision:

(1)   The respondent’s applications for summary dismissal of the administrative review application are refused.

(2)   No order for costs with respect to the applications for summary dismissal.

(3) The Tribunal determines to take no further action with respect to the administrative review application in accordance with section 55(2) of the Privacy and Personal Information Protection Act 1998.

Catchwords:

PROCEDURE – applications for summary dismissal under s 55(1)(b) and (d) of the Civil and Administrative Tribunal 2013 – applications refused.

ADMINISTRATIVE LAW – administrative review of conduct under the Privacy and Personal Information Protection Act 1998 – breach of disclosure principle – no evidence of compensable loss suffered by applicant.

Legislation Cited:

Civil and Administrative Tribunal 2013

Privacy and Personal Information Protection Act 1998

Cases Cited:

CEU v University of Technology, Sydney [2018] NSWCATAD 185

Choi v University of Technology Sydney [2019] NSWCATAD 176

Choi v University of Technology Sydney (No 2) [2020] NSWCA 342

CPJ v University of Newcastle [207] NSWADT 350

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

Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154

Miriani v Transport for NSW [2021] NSWCATAD 16

Murabito v Commissioner for Fair Trading [2020] NSWCATAP 63

South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16

Texts Cited:

None

Category:

Principal judgment

Parties:

EHW – Applicant
Secretary, Agency of Education – Respondent

Representation:

Applicant – Mr Bill Hoyles – guardian ad litem
Respondent – Crown Solicitor’s Office

File Number(s):

2020/0136479

Publication restriction:

Order made on 21 July 2020 under section 64(1)(a) of the Civil and Administrative Tribunal 2013 prohibiting the publication or broadcast of the applicant’s name.

reasons for decision

Introduction.

1. In these proceedings there is an order made on 21 July 2020, under section 64(1)(a) of the Civil and Administrative Tribunal 2013 (NSW) (the NCAT Act), prohibiting the publication or broadcast of the applicant’s name. In these reasons he is referred to EHW and references to persons, places or things that may lead to the disclosure of his identity have been avoided.

2. On 28 January 2020 EHW sought an internal review of conduct of the Department of Education (the Agency) under the Privacy and Personal Information Protection Act 1998 (NSW) (the PIPP Act).

3. The internal review was conducted by Ms Tram Nguyen from the Crown Solicitor’s Office, because of concerns that reviewers within the Agency had conflicts of interest. Ms Nguyen corresponded with EHW in an effort to define precisely what conduct the internal review request related to. EHW asked her to focus on the conduct of the Executive Director of School Performance for an Operational Directorate of the Agency (the Director). He alleged that a breach of his privacy occurred when the Director disclosed his email address to the parent of a child at a different school (the other parent), in an email to the other parent.

4. On 6 April 2020 the internal review decision was sent to EHW. In short, the review found that the Agency had inadvertently disclosed EHW’s email address in a hyperlink, in a letter sent electronically to the other parent. No other personal information had been disclosed. The internal review found that the agency thereby contravened s 18(1) of the PIPP Act. The internal review also found that the Agency’s safeguards to protect EHW’s personal information from disclosure were reasonable in the circumstances and that there had been no breach of the data security provisions in s 12(c) of the PIPP Act.

5. On 7 May 2020 EHW filed an application for administrative review of the conduct with this Tribunal.

Procedural history.

6. This administrative review application has an unfortunate history within the Tribunal. Between the date of filing and now the following events have occurred.

1. The application was listed for Case Conference on 9 June 2020 which was adjourned by consent because EHW had a Court matter elsewhere.

2. The application was then listed for case conference on 21 July 2020 when directions were made, and a hearing was fixed for 7 October 2020 (an application by EHW to adjourn that case conference was refused on 30 June 2020).

3. The hearing scheduled for 7 October 2020 was vacated on 21 September 2020, following a decision to “adjourn all the applicant’s matters until 15 October 2020”, and a case conference was listed for 20 October 2020.

4. At the case conference on the 20 October 2020 further directions were made and the matter was listed for hearing on 4 February 2021.

5. On 25 November 2020, the Tribunal dealt with a request for an adjournment from EHW until February 2020, which was refused as the matter was already listed for hearing in that February.

6. On 24 December 2020, the Tribunal refused a further request for an adjournment so that EHW could obtain further evidence with respect to damage suffered, but made orders confining the hearing scheduled for 4 February 2021 to the issue of liability.

7. Following a request from the Agency for a directions hearing to address EHW’s failure to provide materials, the matter was listed for directions on 19 January 2021. At that directions hearing the Agency advised of its intention to seek to have EHW’s substantive application for administrative review dismissed under s 55 of the NCAT Act. The Tribunal made directions for the filing of a dismissal application, materials in support and of EHW’s reply, and directed that that matter be heard at the scheduled hearing on 4 February 2021;

8. On 29 January 2021, EHW requested a further adjournment so that he could see his doctor and provide information that may enable the Tribunal to “better understand my incapacity and my handicap regarding my current chronic illness.” This was opposed by the Agency. On 2 February 2020, the Tribunal granted EHW’s application for adjournment and listed the matter for further directions on 16 February 2020 by telephone.

9. EHW did not answer the phone when the Tribunal attempted to contact him for the directions hearing on 16 February 2021. The then legal representative for the Agency told the Tribunal he had a return of subpoena listed in the Supreme Court. The Tribunal adjourned for further directions on 23 February 2021.

10. On 23 February 2021, the Tribunal made an order appointing a guardian ad litem to act in the interest of EHW in the proceedings. The proceedings were adjourned for directions on 27 April 2021 and the Tribunal noted that the existing directions may need to be revisited when the appointment process was complete.

11. On 26 April 2021, the Tribunal formally appointed Mr Bill Hoyles as guardian ad litem for EHW pursuant to s 45(4)(a) of the NCAT Act. The next day the Tribunal made further directions for the filing of materials with respect to the Agency’s dismissal application and listed it for hearing on 15 June 2021.

7. That hearing was listed before me by phone on 15 June 2021.

8. In his Guardian ad Litem’s report to the Tribunal, Mr Hoyles proposed that, now that he is appointed, EHW’s substantive application be heard on 15 June 2021, with the Agency’s dismissal and costs application effectively put to one side. The Agency rejected that proposal and pressed for orders summarily dismissing the application under s 55(1)(b) of the NCAT Act, because the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, and s 55 (1)(d), for want of prosecution.

9. At the commencement of the hearing, I sought to confirm that this was still the position. Ms Nguyen, for the Agency, told me that if her applications for summary dismissal failed, she had instructions to consent to the immediate hearing of the substantive application proceeding on the materials already filed.

10. Mr Hoyles indicated that this was acceptable to him, and the hearing proceeded on that basis.

Material before the Tribunal.

11. In considering this application I have had regard to the following materials:

1. Application for administrative review filed on 7 May 2020 with annexures.

2. Orders and directions made by the Tribunal in the proceedings.

3. Guardian Ad Litem’s report dated 12 May 2021 from Mr Bill Hoyles. This contained Mr Hoyles’ submissions.

4. Psychologist report from EHW’s treating psychologist with an annexures, dated 15 May 2021, and filed on 20 May 2021.

5. Section 58 documents filed by the Agency.

6. Application for summary dismissal and cost filed by the Agency on 18 January 2021.

7. Affidavit of Tram Nguyen made and filed on 27 January 2021 with annexures.

8. The Agency’s written submissions re-summary dismissal and costs dated and filed 27 January 2021.

9. Second affidavit of Tram Nguyen made and filed on 15 February 2021 with annexures.

10. Further submissions from the Agency regarding summary dismissal and costs dated and filed 15 February 2021.

11. Application to dispense with a hearing with respect to the application for summary dismissal and costs filed 15 February 2021.

12. The Agency’s submissions in reply filed 1 June 2021.

The scope of the review.

12. When one examines the request for internal review that EHW filed with the agency it is extremely difficult, just from reading the form itself, to understand what conduct he was seeking to review. Some clarity can be obtained from reading the attachments to that form, which are emails and other correspondence flowing between EHW, the other parent, and the Director concerning the disclosure of EHW’s email address to the other parent.

13. After she commenced the internal review, Ms Nguyen emailed EHW asking him to clarify how he said the Agency breached his privacy on three occasions, or, if his complaint only related to the correspondence attached to complaint. He replied on 25 February 2020:

Thank you for scanning and emailing me my complaint form with an email but was provided as supporting evidence from the Dept of education that outlines the allegation of a breach of privacy. There are many breaches but let’s focus on the one that [the director] denies occurred.

14. The Director had sent the other parent an email that contained a hidden hyperlink to EHW’s email address, under the typed email address of the other parent. How this occurred is discussed below. The Director denied any disclosure up until the time when the hidden hyperlink was found.

15. It should be noted that, in an apparent effort to define the scope of the review, Senior Member Higgins on 20 October 2020 noted that:

1. The conduct the subject of this application is limited to the disclosure, by the respondent of the applicant’s email address to the parent of a child at the same school as the child of the applicant.

16. That summation of the scope of the request incorrectly suggests that the other parent’s child attended the same school as EHW’s. It also fails to acknowledge that the scope of the request extended to a complaint that EHW’s email address was not properly secured.

17. Both parties at the hearing before me agreed the scope of review was confined to the security of EHWs email address and its disclosure to the other parent. Mr Hoyles accepted this was the case although he submitted it formed part of a wider pattern of behaviour and abuse of EHW and his family by the Agency and the police, which influenced how the breach of privacy affected EHW.

The internal review.

18. The documents attached to EHW’s request for internal review showed that on 26 September 2019 he received an email at his personal email address from the other parent. He and the other parent did not know each other and had never communicated. That email was clearly intended for the Director to whom it was addressed personally. It concerned the welfare of the other parent’s child at a High School. Having received the email from the other parent, EHW forwarded it to the Director asking how the other parent had come by his email address, asking whether other private information had been disclosed, and what the director was going to do about it?

19. The agency initially denied that it had disclosed EHW’s email address to the Other Parent. Subsequent inquiries, however, revealed that on 22 August 2019 the Director had written to the other parent in a letter created in PDF format. That PDF letter was created using Microsoft Word by a Professional Support Officer at the Agency. A previous letter from the Director to EHW was used as a template for the letter to the other parent. The template included EHW’s hyperlinked email address.

20. In preparing the letter to the other parent, EHW’s email address was over typed with the other parent’s email address, and the text was changed accordingly. The letter was then saved in PDF format and sent to the other parent electronically. Subsequent investigations have revealed that the hyperlink underlying the other parent’s email address in that letter is in fact a hyperlink to EHW’s email address. Thus, were the other parent to have pressed that link, it would have opened a new draft email addressed to EHW.

21. Inquiries made of the other parent, as to how he obtained the email address, resulted in in him saying that EHW’s email address had been given to him by the Director.

22. The internal review found that the Agency had inadvertently disclosed EHW’s personal information, being his email address, to the other parent and that, on balance, the other parent had used that link when intending to reply to the Director. The internal reviewer found at [47]:

I think the most likely scenario as to how [the other parent] obtained [EHW’s] email address was that he opened the 22^nd August letter that he received by email and accidentally clicked on the hyperlink.

Accordingly I am satisfied that in sending the 22 August 2019 letter, the Department disclosed EHW’s] email address to [the other parent].

23. This constituted a breach of section 19 of the PIPP Act.

24. The internal review went on to consider whether there was any breach of the data security standard in s 12(c) of the PIPP Act, namely that the Agency must ensure:

… 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…

25. Put shortly, the internal review found there was no breach of s 12(c) because:

1. There was no unauthorised access to original letter to EHW as a result of the professional support officer using it as a template.

2. There was no sign of EHW’s email address in the letter after the professional support officer had typed the other parent’s email address over it, although the hyperlink was unchanged.

3. Microsoft Office Help instructs that you can create a hyperlink to an email address by typing it. To delete such a hyperlink completely it should be selected and deleted.

4. It was reasonable for the professional support officer to proceed as she did because she had typed over EHW’s email address with the other parents address, and it was no longer visible.

26. The internal review recommended that the agency apologise to EHW for its inadvertent release of his email. A written apology has since been given to EHW. It also made other recommendations regarding modifications to Agency practice to reduce the for risk of future disclosure.

27. These recommendations were addressed by the directorate implementing the following changes: it no longer uses existing correspondence as templates; now checks all hyperlinks before correspondence is sent; and requires new documents to be printed and then scanned to PDFs (rather than be saved as PDFs). Staff have been trained in these procedures.

28. The internal review also noted a number of attempts by EHW to expand the scope of the review which it rejected.

The summary dismissal applications.

Should the proceedings be dismissed as being vexatious, misconceived or otherwise lacking in substance?

29. There can be no doubt that since commencing these proceedings EHW has written a series of letters and emails in which he has complained about the conduct of the Agency, the New South Wales Police and other Agencies with respect to their treatment of him and his family. The Agency’s submissions give examples of EHW making allegations of misconduct, related to matters well outside the scope of this proceeding, without any apparent restraint: see the examples in paragraph 70 of the submissions filed on 27 January 2021. There are also examples of EHW’s actions in the course of the proceedings which show no real comprehension of the limits of the Tribunal’s considerations when reviewing conduct under the PIPP Act, or of the compensation that may flow; see for example paragraph 21 of the Agencies submissions dated 15 February 2021. While more relevant to the want of prosecution claim, the agency in both submissions and evidence sets out in some detail examples of EHW’s inability to come to grips with the requirements of the proceedings, thereby occasioning numerous adjournments.

30. There are no complaints of similar conduct or allegations being made since the appointment of the guardian ad litem.

31. In Choi v University of Technology Sydney [2019] NSWCATAD 176 at [37-39] I discussed the law relating to the summary dismissal of claims under s 55 (1)(b) of the NCAT Act, which provides that the Tribunal may dismiss applications:

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

32. I will not put repeat that discussion here. The power to summarily dismiss is a discretionary one, but the discretion is to be properly exercised.

33. In considering the agencies claim that EHW’s administrative review application is frivolous, vexatious, misconceived and lacking in substance, it quickly becomes apparent that the substance of the matters complained of by the agency concern EHW’s conduct of the proceedings, his inability to restrain his resentment towards various State government agencies, and some of the allegations he has made in the course of the proceedings. The agency also points to EHW’s attempts to broaden the scope of the external review, and some of the claims he has made for damages that are obviously hopeless: e.g., his claim for private school fees paid by his wife, which he says were incurred when his children had to be moved to a private school as a result of the disclosure of his email address. These are all matters that are concerned with EHW’s conduct in the course of the proceedings.

34. In considering that conduct it needs to be borne in mind that EHW is not a lawyer. Reports before the Tribunal indicate that he is suffering from PTSD and an adjustment disorder and is not mentally well. His conduct of the proceedings shows a limited understanding of the scope of or limits to the proceeding, and an inability to retain focus and to comply with timelines. His understanding of the limits and uses of review proceedings under the PPIP Act is dubious at best.

35. While the Tribunal did not provide written reasons for appointing Mr Hoyle as guardian ad litem for EHW, a consideration of the history of the proceedings points to EHW being substantially disadvantaged in his conduct of the proceedings, to the extent that the Tribunal intervened to appoint a guardian ad litem for him. To do so the Tribunal must have been persuaded that he suffered from a relevant incapacity.

36. In this regard, the Agency submitted that the Tribunal did not find that EHW has any incapacity when it made the order appointing a GAL and that he did not have any such incapacity earlier in the proceedings.

32. NCAT Guideline No 2 (April 2020) is concerned with the appointment of guardians ad litem. Among other things it explains:

What is a guardian ad litem (GAL)?

3. A guardian ad litem is a person who the Tribunal appoints to represent a party who is totally or partly incapable of representing themselves in a Tribunal case. The representative is called a GAL for short. The GAL speaks for the party at all Tribunal hearings and resolution processes such as mediations. The GAL is not a lawyer but may arrange to have a lawyer represent him or her.

How and when is a GAL appointed?

4. Any party may apply to the Tribunal for a GAL to be appointed for that party or for another party. Even if no-one applies, the Tribunal may appoint a GAL for a party.

5. The Tribunal may appoint a GAL if a party is totally or partly incapable of representing themselves. For example, the person may not be able to understand or respond to the real issues in the case.

38. At the time the Tribunal first made an order appointing a guardian ad litem for EHW, an earlier Guideline was in operation: NCAT Administrative and Equal Opportunity Division Procedural Direction 5 - APPOINTING A GUARDIAN AD LITEM. It said:

The Tribunal may appoint a GAL to represent a person who is under the age of 18 or who is totally or partially incapable of representing himself or herself. Incapacity may be a result of an intellectual, psychological or physical disability, physical or mental illness or advanced age.

39. In CEU v University of Technology, Sydney [2018] NSWCATAD 185 Deputy President Hennessey explained, with respect to that version of the Guideline that:

12. The Guideline, is not binding, but it reflects relevant common law principles. Those principles were summarised in Dezfouli v Corrective Services [2011] NSWADT 11 at [39] – [47] in the context of the GAL provisions under the Administrative Decisions Tribunal Act. At [46] of that decision I set out the following summary of a decision of the Supreme Court of Victoria. The list of questions Kyrou J has formulated are relevant when determining capacity.

46 In Slaveski v State of Victoria and Others [2009] VSC 596, Kyrou J found that a litigation guardian should be appointed for a self-represented plaintiff who had an anxiety disorder. Mr Slaveski has sued 19 police officers and the State of Victoria seeking damages for various causes of action including assault and battery, wrongful arrest, false imprisonment, malicious prosecution, defamation, trespass to land, trespass to goods and negligence. During the course of a trial that had run for more than 20 days, Mr Slaveski had intermittently behaved in ways which Kyrou J described as disrespectful, argumentative and abusive. Kyrou J usefully identified the following issues as potentially relevant when determining whether a self-represented party is capable of representing himself or herself. These issues accord with the policy objectives and the legal tests that the courts have formulated when considering whether to appoint a person to represent a party with an incapacity.

(a) Does the plaintiff understand the factual framework for his or her claims and the type of evidence required to succeed in his or her claims?

(b) Is the plaintiff capable of understanding what is relevant to the proceeding and what is not relevant when these matters are explained to him or her?

(c) Is the plaintiff capable of assessing the impact of particular evidence on his or her case?

(d) Is the plaintiff able to understand the Court processes and the basic rules for conducting his or her case when these matters are explained to him or her?

(e) Is the plaintiff able to understand Court rulings made during the trial when they are explained to him or her?

(f) Assuming the plaintiff is able to understand Court processes, the basic rules of conducting his or her case and Court rulings, is he or she capable of complying with them and directions given by the judge?

(g) Does the plaintiff understand the roles of counsel for the defendant, witnesses and the judge and is he or she capable of respecting those roles and allowing the relevant individuals to discharge their duties without inappropriate interference or abuse?

(h) Is the plaintiff able to control his or her emotions and behave in a non-abusive and non-threatening manner when events do not go his or her way during the trial (such as when adverse rulings are made by the judge, questions are asked in cross-examination on sensitive issues or unfavourable answers are given by witnesses)?

(i) Does the plaintiff have an insight into the possible adverse consequences of his or her behaviour in court, including delay in the resolution of the claims, the defendant incurring additional costs that the plaintiff might have to pay if the claims are unsuccessful and the tying up of scarce judicial resources when these matters are explained to him or her?

(j) Does the plaintiff understand that he or she could possibly lose the case in whole or in part when this matter is explained to him or her?

(k) If the cumulative effect of the evidence is such that a lay person of reasonable intelligence and common sense would form the view that a particular claim will fail, would the plaintiff be capable of forming such a view?

(l) Is the plaintiff capable of assessing any settlement proposal on its merits, having regard to the state of the evidence, the parties’ submissions and other developments in the proceeding as at the time the proposal is made?

(m) If the trial is long and complex, is there a risk that the stress and pressure of the litigation might harm the plaintiff’s physical or mental health?

The power to appoint a Guardian is primarily protective of the party concerned. My view is that while there is no statutory limitation on the circumstances in which the Tribunal may appoint a guardian ad litem, it may do so at least where it is satisfied that the party is a “vulnerable person” as defined in s 37(3) of the NCAT Regulation. As I have found that CEU comes within this definition, it is not necessary for me to determine the precise scope of the discretion in s 45(4)(a) of the NCAT Act.

40. These passages were referred to with approval by the Court of Appeal in Choi v University of Technology Sydney (No 2) [2020] NSWCA 342 at [35].

41. Without having the benefit of the Tribunal reasons for making the GAL order, I intend to proceed, in accordance with the presumption of regularity, on the basis that the Tribunal was satisfied that EHW has a relevant incapacity (see Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 164] per McHugh JA). I do note that order was made after the Tribunal received a report from EHW’s treating psychiatrist which said, in part:

… He continues to experience symptoms associated with his severe adjustment disorder with significant anxiety and despondency.

His legal issues have all emanated from unsubstantiated allegations and despite those claims being unsubstantiated he has not been able to see his children for 12 months. He is thus caught in the mire of legal attempts to allow him a continued role in his children’s life. His position is supported by the children’s mother and the children who through independent sources have expressed the desire of the restoration of their father’s role. He is unemployed and has limited finances and these legal proceedings are being conducted by legal persons on a pro bono basis. However, [EHW] has been spending enormous time and effort to support the other legal cases in order to facilitate his visitation with his children.

The impact of his efforts have drained him emotionally and it is my opinion that this current matter before the Tribunal, which is justified, is complex and Mr here is does not have the psychological resources to prosecute the matter in a manner that would enable him a fair and reasonable hearing of his grievance on the merits of his case.

42. I also note that in a letter to the Registrar, dated 18 November 2020, EHW’s psychologist advised that he had been diagnosed with symptoms consistent with Post-Traumatic Stress Disorder, complicated by psychological stresses such as being unable to see his children and having to “manage legal proceedings surrounding such.” In those circumstances the psychologist wrote:

… It is my clinical opinion he will experience significant difficulty with concentrating on any other matters until the matter with his children is resolved and/or access is reinstated.

Please therefore consider adjourning the current NSW Civil and Administrative Tribunal (NCAT) proceedings.

43. I do not accept the Agency’s submission that EHW’s incapacity did not exist prior to the GAL order being made. To the contrary, I think it obvious that EHW’s poor, disjointed, confused, often irrelevant, untimely and, at times, uncomprehending management of the proceedings, are features that would lead the Tribunal to question his capacity and contemplate making a GAL order. When combined with the numerous references in EHW’s correspondence to his medical difficulties and his perceived incapacity, his conduct of the proceedings made his difficultly manifest.

44. Despite this, if one’s attention is solely focused on the issues raised by EHW’s initial privacy complaint, with the irrelevant allegations and claims that EHW has made in the course of the proceedings being disregarded, there remain real issues to be determined on an external review of the agency’s conduct. In the course of debate, Ms Nguyen accepted that that it would be open for the Tribunal on review to reach a different conclusion with respect to whether or not a breach of the retention and security standard in section 12(c) of the PIPP Act. She also conceded that the Tribunal might take the view that EHW’s post-traumatic stress disorder had been aggravated or exacerbated by the breach of privacy, and that he should be compensated for that.

45. In those circumstances I do not think that EHW’s application is so lacking in substance that it is frivolous, vexatious, misconceived or lacking in substance.

46. Additionally, if I had been persuaded of any of those matters, I would nonetheless have exercised my discretion to refuse to summarily dismiss his application, given that a GAL has now been appointed for EHW and that, in my assessment, his difficulties in representing himself have been evident since early in the proceedings.

47. Consequently, I refused to summarily dismiss EHW’s application under section 55(1)(b) of the CAT Act.

Should the application be dismissed because it is being used to make a collateral attack?

48. The Agency submits that the application should also be dismissed as being misconceived and lacking in substance, because EHW has sought to use the proceedings as cover for questioning the actions of, and making attacks on, the police and the Agency more generally. The agency provides a number of examples among the materials and correspondence provided by EHW where this has occurred.

49. In Miriani v Transport for NSW [2021] NSWCATAD 16 I explained at [21]:

There is a chain of authorities that follow the decision of the Court of Appeal in Crewdson v Central Sydney AHS [2002] NSWCA 345 that are concerned with applications under freedom of information and privacy legislation not being used for a collateral purpose. In Crewdson an application to correct or amend information under the Freedom of Information Act 1987 (NSW) (now repealed) was not allowed to be used to challenge a historical record, rewrite history, or as a mechanism to review a decision already made. In GA v, The University of Sydney (GD) [2010] NSWADTAP 31 the Appeal Panel wrote, at [24-25] -

The amendment rights given by Privacy and FOI applications belong to the practical world of administration in regulated agencies. Here the regulated agency is a major university and the dispute goes to records of fundamental importance, student admission and enrolment records. GA does not himself dispute the University's understanding of the process the University engaged in and the accuracy of its records insofar as they follow from and are based on that understanding. In our view, concessions of this kind must bring to an end any debate as to accuracy and completeness in the practical world of a regulated agency.

GA's essential case is that he should have been treated differently, and, insofar as he was not, the University's conduct was invalid and unlawful. We agree with observations of the Member below, drawing in turn on the following remarks of Handley JA in Crewdson v Central Sydney AHS [2002] NSWCA 345 at [24]:

24 The appellant's attempt to use the Act as a vehicle for the collateral review of the merits or validity of official action should be rejected in any event. The Act is concerned with the accuracy of official records, not with the merits or legality of the official action recorded in them. Compare Re Resch and Dept of Veterans' Affairs (1986) 9 ALD 380, 386, 387 (Hall DP) and Hewitt v Grabicki [1986] USCA9 1380; 794 F. 2d 1373 (9th Circuit 1986), 1378.

This has since been followed in many cases of which VZ v University of Newcastle (No 2) [2012] NSWADT 167; ARC v Northern NSW Local Health District [2014] NSWCATAD 109; and ABA v Department of Human Services, Community Services [2012] NSWADT 117 are a few.

Transport for NSW has not articulated in its submissions how Mr Miriani seeks to use the current review application for a collateral purpose, or what that purpose is. Yet, it relies on the allegation that he is pursuing a collateral purpose to demonstrate that the review application is vexatious.

50. In EHW’s case he has at times sought to expand the scope of his initial privacy complaint on internal review to encompass wider issues. As discussed above, the Agency and the Tribunal, have consistently confined his administrative review to matters within the scope of his initial complaint.

51. I asked Ms Nguyen how EHW could use the proceedings as initiated, to mount a collateral attack, if the evidence and materials were confined to matters within the scope of his initial complaint. She conceded that, if so confined, EHW could not raise matters outside the scope of his initial request.

52. In those circumstances the submission that the purpose of the proceedings is to mount a collateral attack on either the police or the Agency does, not withstand the weight of analysis. It does not provide a basis for dismissing the proceedings, or for arguing that they are misconceived or otherwise lacking in substance.

Should the application be dismissed for want of prosecution?

53. In Murabito v Commissioner for Fair Trading [2020] NSWCATAP 63, at [31] the Appeal Panel comprised of the President and Principal Member Pearson set out the principles applicable to a dismissal of proceedings for want of prosecution under section 55(1)(d) of the CAT Act.

[31] The principles applicable to an application for summary dismissal under s 55(1)(d) have been previously considered by the Appeal Panel in Bousgas v HD Constructions (Aust) Pty Ltd [2017] NSWCATAP 122 and K & J Vision Pty Ltd v Jows Construction Pty Ltd [2019] NSWCATAP 139 .

[32] Those decisions refer to the earlier authorities, including Birkett v James [1978] AC 297, which established the principle that a court should be reluctant to dismiss proceedings unless there has been either intentional or contumelious default on the part of the plaintiff or inordinate or inexcusable delay giving rise to a substantial risk that a fair trial would not be possible, and note that that approach has been diminished with the enactment of the provisions in ss 56 to 60 of the Civil Procedure Act 2005 . The overriding purpose as stated in s 56 of that Act is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. In New South Wales v Plaintiff A [2012] NSWCA 248 Basten JA held:

17.Although there is authority for the proposition that a court should be reluctant to exercise the power of summary dismissal without a hearing on the merits absent intentional and contumelious default on the part of the plaintiff, or inordinate or inexcusable delay, giving rise to a substantial risk that a fair trial would not be possible - see Birkett v James [1978] AC 297 at 318 - the stringency of that principle has been diminished by the enactment of ss 56–60 of the Civil Procedure Act. Further, a proceeding will involve an abuse of process in circumstances where the objective effect of the lapse of time since the cause of action arose is to render a fair trial impossible, despite the absence of any moral delinquency, oppressive conduct or misconduct on the part of the plaintiff: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 at [69] –[70] .

18.Despite the fact that misconduct on the part of a plaintiff is not a precondition to a finding of abuse of process, the reasons for any delay are relevant considerations. Thus, it would be a rare case in which a defendant could complain of unfairness where the delay was in large part due to the defendant’s own behaviour. By parity of reasoning, a court is likely more readily to find an abuse of process where there is culpable misconduct on the part of a plaintiff.

[33] As held by Basten JA, determination of an application to dismiss proceedings for want of prosecution requires consideration of a variety of factors, including the length of any delay and associated costs, any explanation for the delay, and prejudice to other parties in the proceedings. While decided before the introduction of s 56, the identification by Simpson J in Hoser v Hartcher [1999] NSWSC 527 of relevant factors to be taken into consideration remains a useful summary:

19It seems to me that the following principles are relevant to the exercise of the discretion to strike out for want of prosecution. The list is not intended to be exhaustive:

(1.) the ultimate question is whether, on balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed: Stollznow v Calvert (1980) 2 NSWLR 749 at 751 F (Court of Appeal); Razvan v Berechet , unreported Court of Appeal, 23 February 1990; Vilo v John Fairfax and Sons Limited , unreported, 19 November 1995, per Sperling J;

(2.) the discretion should be exercised only in a clear case where it is manifestly warranted; Razvan, per Kirby P; as is generally the case with discretionary decisions, each case depends upon its own facts. Rigid formulae should not be applied to the exercise of the discretion: Stollznow v Calvert at 751 D;

(3.) any explanation offered by the plaintiff for the delay in proceeding must be considered: Burke v TCN Channel Nine Pty Limited, unreported, 16 December 1994, per Levine J;

(4.) personal blamelessness on the part of a plaintiff (as distinct from any tardiness or other fault on the part of his/her/its legal representative) is relevant: Stollznow, p73.

(5.) a defendant who takes no steps to secure progress in the proceedings, or to activate an apparently inactive plaintiff or who stands by in the hope that the passage of time will ensure the quiet death of the proceedings or that the longer delay will strengthen the case for striking out, runs the risk that that very behaviour will operate to his/her/its disadvantage. A defendant has two choices: to attempt to prod the plaintiff into action, or to stand by, doing nothing, trusting that time will bring about the slow death of the action. Either choice represents something of a gamble, dependent upon future events that the defendant is unable with any degree of confidence to predict. If the defendant opts for the former course, of prodding the plaintiff into action, it may succeed in doing so, precluding an application to strike out. On the other hand, if the plaintiff remains inert, the defendant’s case for striking out strengthens with passing time. If the defendant chooses the latter option and takes no action, the plaintiff may take no further steps, or may take no further steps until such irremediable prejudice is caused to the defendant that the application to strike out will succeed; if, however, some other event galvanises the plaintiff into action the defendant, having done nothing to progress the matter, can hardly be heard to complain of the plaintiff’s earlier inactivity: Calvert v Stollznow , 1 April 1980, Ritchie’s Supreme Court Procedure, (NSW) Vol 2, para 13, 022, per Cross J (at first instance); and in the Court of Appeal per Moffitt J, p 753; Vilo, p 10; McBride v Australian Broadcasting Corporation , unreported 6 November 1998, per Levine J; Bass v TCN Channel Nine Limited, unreported 25 July 1997, per Levine J; Hart v Herron , unreported, 3 June 1993, Court of Appeal per Priestley JA;

(6.) delay between the date the cause of action arose and the commencement of the proceedings may be a relevant factor: Calvert v Stollznow, per Cross J; Burke v TCN . But in my view, this circumstance must be treated with some caution. The weight that can be accorded to that delay is limited. Where an action is commenced within the period provided for by an applicable statute of limitations, it would not ordinarily be appropriate to take that period into account. However, if a plaintiff has delayed significantly in the commencement of the proceedings, and that delay is followed by further lethargy in the advancement of the proceedings, the effect of the initial (but permissible) delay is compounded. The real question is not the length of the delay, but the impact that delay has upon the defendant’s capacity properly to defend the plaintiff’s claim. That will be a question of fact in each case. While there may be some prejudice presumed by reason of the passage of time, much will depend upon the nature of the proceedings, and the identification of the issues involved in the litigation. Where, for example, at the close of pleadings it can be seen that there are disputed questions of fact dependent upon the oral evidence of witnesses, or their recollections, the prejudice will plainly be greater than in cases that depend essentially upon the application of legal principle to largely undisputed facts, or upon disputed questions of fact that will be resolved by reference to documentary or other objective evidence not likely to be affected by the effluxion of time;

(7)the onus lies on the defendant to establish any prejudice upon which reliance is placed. The disappearance or death of witnesses, the fading of their recollections, or the destruction of records, are some obvious examples of the kind of prejudice that might arise;

(8)prejudice to a defendant caused by delay has to be balanced against prejudice to a plaintiff deprived of an otherwise valid claim; delay in the commencement of proceedings by a plaintiff is sometimes taken as evidence contra-indicating prejudice to the plaintiff in the sense that he/she/it has evinced no interest in his/her/its own case: Burke, supra. Such an inference may be contra indicated by explanatory evidence; in this regard the plaintiff’s personal responsibility for the delay is an important factor as is any explanation provided for the delay;

(9)what the defendant has (or has not) done by way of preparation for trial may be a factor. This is a distinct question from that concerning any steps taken (or not taken) by the defendant in prompting the plaintiff to action. A defendant who has not interviewed witnesses, taken statements or collected documents, after being served with the claim, has a less meritorious complaint about the effect of prejudice caused or presumed by reason of delay: McBride v ABC , unreported, 6 November 1998, per Levine J;

(10)the plaintiff’s prospects of success is a relevant factor. If it appears that the prospects are minimal, the discretion is more likely to be exercised in favour of the defendant. Conversely, where the plaintiff’s case is strong (absent the kind of prejudice to the defendant to which I have referred) it is less likely that justice will be done by striking the action out: Razvan, per Kirby P;

(11)the exercise of the discretion to strike out should not incorporate any element of punishing a tardy plaintiff, or of excluding one who may appear to have some unworthy characteristics: Razvan, per Kirby P The ultimate aim of a court is the attainment of justice: The State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146 . To adapt the words of the High Court in that case, discretions such as that presently invoked ought not to be used to supplant the overall aim of the attainment of justice.

[34] As noted in Bousgas and K & J Vision, the guiding principle in s 36(1) of the NCAT Act is in the same terms as s 56 of the Civil Procedure Act. The guiding principle for the NCAT Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The scope of the Tribunal’s power in s 55(1)(d) must be determined in accordance with that principle and the general legislative context: Owners Corporation Strata Plan 4521 v Zouk [2007] NSWCA 23 at [41] . The obligations imposed on the Tribunal and the parties and their representatives by s 36(1), (3) and (4), and s 38(5)(c) of the NCAT Act are relevant factors to be taken into account in considering whether to make an order to dismiss proceedings for want of prosecution under s 55(1)(d) of the NCAT Act.

54. The Agency submitted that the following factors show that EHW has failed to prosecute his administrative review application.

1. EHW has not filed or served evidence or submissions on the issue of liability, or materials demonstrating any loss or psychological or other harm resulting from the breach of privacy, in the period before the appointment of a GAL.

2. EHW failed to provide an adequate excuse for these delays, despite the Tribunal providing him with “overly generous ”timeframes –

… The respondent submits that the applicant’s other court and tribunal proceedings, and mental illness does not provide an exculpatory explanation for the continued delay…

3. EHW has been tardy in meeting his obligations in the proceedings and had more than sufficient time in which to file his paperwork before the appointment of a GAL. He did not contact the Agency to explain his delays and put the Agency in a position where it had to follow up his delays.

4. EHW occasioned additional costs to the Agency in dealing with adjournment requests, sending additional correspondence relating to non-compliance, and preparing for additional hearings or directions hearings.

5. The protracted proceedings have incurred public costs to the Tribunal which a are disproportionate with the complexity of the case.

6. EHW’s has limited prospect of success. In this regard the Agency relied on its arguments with respect to the proceedings being vexatious, misconceived, etc.

55. In the course of discussion during the hearing I asked why I should dismiss the application for want of prosecution in circumstances where a GAL had been appointed for EHW, and the GAL had filed reports, submissions and evidence as required by the Tribunal (some of which the Agency argued is deficient) and was willing and ready to proceed with the hearing of substantive application. In response, the Agency urged me to consider EHW’s conduct of the proceedings prior to the appointment of the GAL and to dismiss the application for want of prosecution. If I were to take the view that the matter should not be so dismissed, then the Agency sought an order for its costs thrown away and of the dismissal proceedings.

56. Mr Hoyles argued that it was clear from very early in the proceedings that EHW was having substantial difficulties representing himself. On 2 September 2020, in response to a request that he supply materials ordered, EHW told the Agency that he was, “managing a family crisis” and “incapacitated by oppressive conduct.” In an email dated 29 September 2020, regarding an adjournment request and the Agency raising the issue of costs, EHW wrote, ‘I have medical reasons and you are aware of other matters that I must comply with…” The other matters were explained in an affidavit from EHW’s former partner.

57. In an e-mail to the Tribunal, dated 22 October 2020, which was copied to the Agency, EHW wrote –

I seek again to make my case that the current orders by another court and my incapacity in my personal life which has support by doctors certificates and an affidavit … make it impossible for me to comply by 18 December 2020, my current circumstances will not allow me to properly put my case forward and I requested a further extension until next February.

58. In a lengthy email sent to Ms Nguyen and copied to the Tribunal, dated 24 November 2020, EHW explained in some detail the numerous difficulties he was confronting in his life. While the email reflects his view of what was occurring, it is apparent that he was confronting difficulties - including court cases relating to himself and his family, as well as criminal charges and ill health - which were making it very difficult for him to deal properly with the application before the Tribunal.

59. The point Mr Hoyle sought to make by reference to these matters was that the Agency and the Tribunal were alerted to the difficulties that were confronting EHW in the management of his litigation. He was being overwhelmed by a combination of pressures and could not manage to meet the demands of the litigation. Letters from his treating psychologist advised that this was the case. Mr Hoyle argued that this should have been apparent to both the Agency and the Tribunal well before the GAL order was made.

60. I think it plain that these proceedings have followed an unfortunate course in the Tribunal. It is clear that EHW’s conduct has delayed the proceedings and resulted in a series of adjournments that would have been much better avoided.

61. Section 36 of the NCAT Act provides –

(1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The Tribunal must seek to give effect to the guiding principle when it—

(a) exercises any power given to it by this Act or the procedural rules, or

(b) interprets any provision of this Act or the procedural rules.

(3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal—

(a) a party to proceedings in the Tribunal,

(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.

(4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.

(5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.

62. The Agency argues that EHW’s conduct of the proceedings has not been that required by section 36(3). I agree that was the case prior to the appointment of Mr Hoyles as GAL but in doing so acknowledge that, from September through to December 2020, EHW was complaining about the difficulty he had in managing the proceedings, due to the pressures on him. The very history of the proceedings illustrates his difficulty.

63. The delays caused by EHW have resulted in the final determination of the proceedings being delayed by approximately four months. They have resulted in the Tribunal being unable to determine the matter as quickly, efficiently and cheaply as possible. At the same time, it is difficult to see how the delays occasioned by EHW have resulted in the proceedings being unfair to either party. His case is not one that was necessarily destined to fail. The Agency has not pointed to any prejudice it may suffer, in terms of the determination of the administrative review, as a result of the delay. No witnesses have been lost as a result of the delay and the Agency’s evidence has been prepared and filed for some time. There has been no need to change or modify it as a result of the delays.

64. The dismissal applications have however caused the Agency to generate substantial submissions and additional evidence.

65. The appointment of Mr Hoyle as GAL for EHW has resulted in that the deficits occasioned by EHW’s non-compliance with Tribunal directions being remedied, and EHW now being in a position where he is ready to proceed with the substantive application. Rather than agreeing to such a course however, the Agency instead presses for summary dismissal.

66. I am not persuaded that dismissing EHW’s application for want of prosecution is the correct, preferable or fair course of action in the current circumstances. It would not result in a fair or just outcome in circumstances where a GAL has been appointed to assist an applicant and is now ready to proceed. Indeed, summary dismissal for want of prosecution in these circumstances, as proposed by the Agency, impresses me an unjust outcome about which EHW could rightly feel aggrieved.

67. I refuse to dismiss the application for want of prosecution.

Costs of the summary dismissal applications.

68. The Agency sought summary dismissal on a number of separate grounds. It has failed on each.

69. Section 60 of the NCAT Act relevantly provides:

(1) Each party to proceedings in the Tribunal is to pay the party’s own costs.

(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following—

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36(3),

(g) any other matter that the Tribunal considers relevant.

70. While I am satisfied that special circumstances exist in this case with respect to EHW’s conduct of the proceedings prolonging the proceedings, given the matters in issue, and his failure to comply with s 36(3) of the NCAT, I am not persuaded that this is an appropriate case in which to depart from the usual course that each party bear their own costs.

71. This is so for the following reasons:

1. the Agency has not obtained a summary dismissal order on any of the three grounds claimed;

2. the Agency’s conduct in persisting with its summary dismissal applications after the GAL was appointed, and after the GAL complied with outstanding directions, was not, in my view, reasonable;

3. while it does not excuse his failure to comply with directions, I accept that EHW was operating under considerable personal stress and difficulty is managing his application which goes, in some way, to explain his difficulty.

72. Each party should bear their own costs of the summary dismissal application.

The substantive proceedings – a review of the Agency’s conduct under the PIPP Act.

Brief outline of the submissions.

73. EHW’s submissions were outlined in Part 3 of Mr Hoyles’ report. He noted that the Agency admitted to a breach by disclosing EHW’s email address to the other parent without permission. He acknowledged the apology from the Director and the changes in practice implemented by the Agency in an effort to avoid a similar event in the future. The submission outlines both Mr Hoyles’ position as GAL and EHW’s position.

74. Put shortly, EHW sees the breach as one of many, is suspicious that more than his email address was released and sees it as one of many breaches of privacy committed by the Agency.

75. As already indicated the Tribunal’s review of conduct is confined by the scope of the initial internal review request: Department of Education and Training v GA (No.3) [2004] NSWADTAP 50 at [5]; CYL v YZA [2017] NSWCATAP 105 at [58]. The conduct identified by EHW when asked to clarify his complaint was that of the Director when disclosing his email address to the other parent. That gives rise to a consideration of whether there has been a disclosure of his personal information in breach of s 18 of the PIPP Act, or whether the Agency has failed to protect and secure the information by putting in place such security safeguards as are reasonable in the circumstances against loss, unauthorised access, use, modification or disclosure, and against all other misuse, as required by s 12(c).

76. Mr Hoyles accepts the conclusions of the internal review as to how the disclosure occurred. He accepts that an initial examination of the documents did not disclose the hidden hyperlink to EHW’s address, and that the initial denials of disclosure were not attempts to mislead. He accepts the disclosure resulted from an error created by typing over EHW’s email address, that no other personal information was disclosed, and that it was an “innocent mistake” and “inadvertent”.

77. Mr Hoyles goes on to state that EHW has been by targeted by police, including police in cooperation with the Agency, and that, against that background, this particular breach of privacy had a significant impact on EHW and his family. The lengthy delays in making the internal review decision – approximately 3 and a half months – made this worse, as did the disclosure in the s 58 of the correspondence from the other parent. Cumulatively, Mr Hoyles argued this amounted to more than could be remedied by a single apology.

78. When considered in the context of “other alleged breaches and the criminal charges involving education that failed” Mr Hoyles submitted that the damage was so great that exemplary damages would be justified. They are not available under s 55.

79. Mr Hoyles said that EHW now sought:

1. An apology to each of his children (for what is not clear) and compensation for their private school fees incurred by his partner following a decision to move them to an expensive private girls school.

2. The costs and damages as specified by his former partner on her statutory declaration.

3. Compensation for psychological damage concerning which there was a report from EHW’s treating psychologist.

80. In its submission, the Agency again made the point that a review of conduct is confined by the scope of the initial complaint. Given the conclusion reached by the internal review, the apology already given to EHW, and the changes implemented with respect to PDF documents, the Agency submitted that the Tribunal should decide not to take any action on the matter, as authorised by s 55(2) the PIPP Act.

81. In the course of the hearing, I was asked by Ms Nguyen whether I required her to address the Tribunal on whether there had been a breach of s 12(c), a matter I had raised in the summary dismissal phase of the hearing. I replied that given Mr Hoyles agreement that the disclosure was “an accident” and “inadvertent” I would not require her to address me on that issue, as, in the face of that agreement, I did not think I could reach a conclusion that the Agency’s security safeguards were not reasonable.

82. The Agency submitted that integral to the Tribunal’s power to award compensation under s 55 of the PIPP Act is that the Tribunal be satisfied that the compensation is for “loss or damage suffered because of the conduct” of the Agency: see s 55(2)(a) and s 55(4)(b). The Agency submitted this was not the case with any of compensation sought by or for EHW.

83. The Agency submitted that the financial loss claimed by EHW had not been suffered by him, but by his former partner, and that the privacy that had been breached in this case was his, not that of his former partner or of their children. No privacy complaint had been made by any of them. The Tribunal’s power is to pay ‘the applicant’ – not others - compensation not exceeding $40,000 for loss or damage.

80. In addition, with respect to the children’s school fees, the Agency submitted that there was no established, causative correlation between the disclosure of EHW’s email address to the other parent, and the need for the children to change school, or of the need to change to an expensive, private girls school.

81. With respect to the claim that EHW had suffered compensable, psychological harm as a result of the privacy breach, the Agency referred to the reports from EHW’s treating psychologist and submitted:

1. that it did not comply with NCAT procedural direction No 3 – Expert Evidence and therefore should be given little weight;

2. that the author was not objective in her assessment because:

1. she is in an ongoing treating relationship whereby she treats EHW;

2. the report was paid for by EHW; and

3. while it referred to the conduct of other NSW government agencies it did not refer to the conduct under review at all; and,

4. it therefore provided no basis upon which the Tribunal could conclude that EHW suffered psychological harm because of the Agency’s conduct.

86. Finally, the Agency submitted that were I to find that compensation was assessable I should not in the circumstances order compensation in this case.

Conclusion.

87. On the balance of probabilities, I agree with the conclusion reached by the internal review as to how EHW’s email address came to be disclosed to the other parent. That disclosure was not authorised by s 18 of the PIPP Act and was made in breach of that section. I accept, as does Mr Hoyles, that the disclosure was accidental and inadvertent.

88. Given the agreed circumstances of the disclosure, I also accept that the conduct did not also demonstrate a breach of s 12(c) of the PIPP Act. The continued existence of the hyperlink to EHW’s email address, after it had been typed over, was unknown and undiscoverable, without particular examination of an electronic copy. In those circumstances, I do not think it can be found that the safeguards implemented by the Agency were unreasonable. It is important, once such a vulnerability is exposed, that government agencies ensure their safeguards address that vulnerability. In this case, I am satisfied that the Agency’s change in practice should prevent a similar disclosure occurring again.

89. EHW has already received an apology as directed by the internal review. He now asks for an order that the Agency also apologise to each of his children: for what is not clear to me. The conduct in issue is the disclosure of their father’s email address. The children’s personal information has not been disclosed. In those circumstances, I do not think it appropriate to make such an order. I also note that under s 73(7)(b), on internal review, the Agency may apologise to “the applicant”’, not anyone else.

90. Since the decision in CPJ v University of Newcastle [207] NSWADT 350 at [25 - 27] the Tribunal has followed the “material contribution” test in considering whether loss or damage has been suffered because of an Agency’s conduct. The question is whether the conduct in issue has materially contributed to the loss, damage or psychological harm.

91. In the present case EHW relies on two pieces of evidence: a statutory declaration from his former partner and a report from his treating psychologist dated 15 May 2021.

92. In the statutory declaration EHW’s former partner says:

I am the mother of [three children’s names].

As a result of the ongoing actions of the Education Department, commentating in the Proven breach of our Privacy in August 2019, I had to move my children out of the public school system.

I have been asked to put forward the costs that I have had to pay and lost as a result of having to move my children to the private school system through Breach of Privacy.

I enrolled my children [two names] at [school name] on or about October 2019 in preparation for the 2020 school year.

The school see fees for a year seven student are approximately $30,000. This is exclusive of uniforms, bags, sports clothes, sports gear and equipment and any extra curricular activities such as camp, rowing, or swimming.

I paid approximately $6000 in administration fees in October or November 2019, $15,000 for term 1 fees, approximately $500 for summer uniforms, bags, and shoes, and approximately $600 for rowing and swimming, swimming costumes, hats and sport wear. I also paid approximately $1000 for school camp and all the camp equipment.

My children were taken into care and, after children’s Court proceedings, were returned to my care.

[The school] allowed [the same two children] to attend Term 3 and Term 4 in 2020. The cost of Term 3 and Term 4 for both girls was $30,000. By the end of 2020, after paying approximately $7000 in school fees and $1000 for the winter school uniforms, I could no longer afford to send my children to [the school]. I had defaulted on my personal loan and my legal fees were ongoing. I advised the full school of my circumstances they reduce the remaining $23,000 to approximately $8,100. I have since paid $500 towards this debt.

I still owe [the school] $7600.

I have paid approximately $31,600 towards [the school]. I still owe [the school] approximately $7,600.

These are the actual cost the school fees alone that have resulted from the actions of the NSW Department of Education.

In addition there has been a personal toll on our family including psychological and emotional stress, medical, psychologists and psychiatric appointments, loss of income and massive legal fees. It is difficult to quantify this in monetary terms.

93. A number of points need to be made with respect to the statutory declaration.

1. It refers to the breach of “our privacy” without defining whose privacy is in issue. There is no evidence before me that the privacy of EHW’s former partner or of his children has been breached by the disclosure of his email address.

2. There is no explanation in the statutory declaration of whether there is any and what ongoing relationship between EHW and his former partner, and whether he has paid or contributed to any of the expenses claimed. It would seem from the statutory declaration that EHW’s partner has voluntarily decided to incur these expenses herself.

3. No explanation is given as to why the conduct of the Agency, in disclosing EHW’s email address to the other parent, resulted in the decision that two of the children had to be moved to a private and expensive girls school. It would appear that other circumstances such as the children being the subject of care proceedings offer a more probable explanation for the move.

4. No receipts for the amounts claimed to have been expended are provided.

5. No details are given of schooling arrangements for the third child.

6. It would appear that the two older children were due to transfer to high school in any case. The allegation that the move to a private and expensive girls school was somehow necessitated by the agency’s conduct is not explained.

94. I do not accept that the $39,200 which EHW claims as compensation for relating to school fees was incurred by EHW or was incurred as a result of the conduct of the Agency. There is no evidence that the school fees are a loss suffered by EHW. If he had incurred fees of that nature, there is no evidence before me that explains how the disclosure of EHW’s email address to the other parent materially contributed to these school fees being incurred.

95. There are a number of medical reports among the material relied on by EHW to demonstrate that he has suffered psychological harm because of the Agency’s conduct. They are:

1. Short reports from EHW’s treating psychiatrist dated 24 July 2020, 21 October 2020 (to the Children’s Court) and to the Tribunal dated 17 February 2021.

2. Letter from EHW’s general practitioner to the Tribunal dated 14 October 2020 (in support of an adjournment) and to the Children’s Court regarding EHW’s children, dated 20 October 2020.

3. Letters from EHW’s treating psychologist to the Children’s’ Court dated 11 November 2020, and to the Tribunal dated 15 May 2021.

Concerning the reports from the Psychiatrist

96. I have already quoted the substance of the psychiatrist’s letter of 17 February 2021. It does not provide any evidence of a causal link between the conduct of the Agency in issue here and EHW’s mental health condition. The earliest letter from the psychiatrist, dated 24 July 2020, sought more time for EHW to prepare his case as a result of stresses resulting from criminal charges against him (since dismissed), his incarceration pending hearing, and the removal of his children.

97. The letter to the Children’s Court from the psychiatrist concerned access to his children.

98. Nowhere in the correspondence from the psychiatrist is there any discussion of the effect on EHW’s mental health of the disclosure of his email address to the other parent. While there is mention of other causative factors such as his detention, criminal charges, and the removal of his children, the psychiatrist does not address the issue of whether EHW”s psychological condition was caused, aggravated or exacerbated by the Agency’s conduct in this case.

Concerning the reports from EHW’s General Practitioner.

99. It is clear from these letters that EHW’s General Practitioner considers that EHW and his family have been the subject of unjust prosecution and have suffered at the hands of the Police and the Department of Corrections. There is no mention in any of his correspondence of the conduct of the Agency in issue here, and no suggestion that EHW’s mental health has been cause or exacerbated by that conduct.

Concerning the reports from the Psychologist.

100. The earlier reports from EHW’s psychologist, referred to and quoted above, were all written in support of his various applications for adjournment. They said that he had PTSD and was experiencing difficulty managing the proceedings.

101. In a report dated 15 May 2021 EHW’s treating psychologist wrote regarding EHW’s “current psychological state.”

The objective of the report is to provide a psychological assessment of EHW’s current psychological state, the impact of arrests, incarceration and legal proceedings, and future recommendations.

102. In preparing the report the psychologist was provided with:

1. a copy of the application initiating care proceedings in relation to EHW’s children dated 27 March 2020 (this was not among the material before me);

2. a copy of Mr Hoyle’s guardian ad litem report; and

3. the statutory declaration from EHW’s former partner.

103. The report narrates EHW’s personal history. It then refers to a series of events which include:

1. EHW being charged in 2018 and held in custody for alleged violence against an employee of the Agency, which charge was subsequently dismissed with costs;

2. EHW being charged in early 2019 with sexual abuse as a result of allegations from within the Agency and held in custody for some months before the charge was dismissed with costs;

3. In early 2020 EHW being the subject of an allegation that he had sexually abused his own children made “by the Department of Education” which resulted in his children being removed for five days. These allegations were withdrawn after more than twelve months.

104. Relevantly the report states:

On 26 August 2019, he received an email from a parent of his children’s school (sic) that the parent had received information about EHW and the allegations of sexual abuse and violence. He reported this causing [his former partner] and himself a fear of harm, given the possible implications to their person, of gossip and rumours pertaining to such, amongst parents and members of the wider community.

105. It must be pointed out that this description of the email which EHW received from the other parent does not accord with reality. The other parent did not have a child at the same school as EHW’s children; they were not part of the same community and did not know each other. There was no mention of any allegations made against EHW in the email. It was not written by a departmental officer but was written by the other parent and related to concerns regarding that person’s child at a different school. It was an email written by the other parent to the Department which had inadvertently found its way to EHW’s inbox. It had nothing to do with him.

106. The psychologist wrote:

[EHW] reported the arrests and course of events were allegedly as a result of complaints against him by the Department of Education, an escalation of victimisation, harassment and racism by the police, and the privacy breach by the Department of Education.

107. Of these, the Tribunal may only award compensation for the privacy breach if satisfied that EHW has suffered psychological harm because of the Agency’s conduct. The other conduct is outside the scope of this review. The conduct described by the psychologist relating to the privacy breach does not reflect the conduct as found by the internal review, or by the Tribunal on external review.

108. The psychologist concludes that EHW’s symptoms are consistent with Post-Traumatic Stress Disorder, complicated by stressors involving legal proceedings. In the first two paragraphs of the psychologist’s conclusions a number of those stressors are named. The breach of privacy is not. The psychologist then concludes:

It is my clinical opinion there is a causal connection between the course of events noted herein an EHW ‘s current reported psychological state.

109. The report goes on to recommend ongoing psychiatric and psychological treatment for EHW.

110. As outlined above, the agency made a series of submissions with respect to various defects and insufficiencies in the psychologist report. The first of these is that the report does not comply with the Tribunal’s Practice Direction 3 – Expert Evidence. I do not accept this submission as the Practice Direction does not apply in the Administrative and Equal Opportunity Division, unless a direction to that effect has been made. There has been no such direction made.

111. Despite this, I agree that the report fails to identify the psychologist’s qualifications and experience from which one could consider and assess professional expertise. Further, the psychologist was not provided with all necessary and relevant documents to assist in making the assessment: e.g., the psychologist was not provided with copies of the internal review decision or the initial privacy complaint. Both documents are essential to a proper understanding of the privacy complaint.

112. It appears that the psychologist’s assessment has been made on the basis of the facts as narrated to the psychologist by EHW. These are plainly wrong. Accepting them, as a basis for the opinion, taints the psychologist conclusions with respect to the effect of the conduct in issue on EHW. The conduct considered by the psychologist is not what actually occurred. This means that the psychological assessment of the impact of that conduct on EHW psychological state is based on a false premise.

113. Further, the psychologist gave no explanation for the conclusion that there is a causal connection between the “conduct herein” (which included an erroneous description of the privacy breach) and EHW’s current psychological state. In the absence of an explanation the psychologists conclusion cannot be probative of the causation issue: see South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [130-133] per McColl JA. The psychologist’s conclusion is unpersuasive and should be approached with great caution.

114. As a result, I will give the psychologist conclusions no weight.

How should the administrative review be disposed of?

115. As can be seen, I find myself in general agreement with the conclusions reached on internal review. I agree with that there has been an inadvertent disclosure of EHW’s email address to the other parent. There is no evidence that this was deliberate or intentional. I am not persuaded that EHW has demonstrated compensable psychological harm or financial loss as a result of the disclosure, for the reasons outlined above. The decision of the internal review to require the agency to apologise to EHW for the disclosure was appropriate in the circumstances. As already explained, I can see no basis for finding that an apology is due to EHW’s former partner or children. The changes in practice adopted by the agency following the disclosure should ensure that there are no further such disclosures. The scanning of letters to PDF documents should ensure that they do not contain hyperlinks.

116. In all the circumstances, I determine to take no further action on the matter.

117. The Tribunal makes the following orders :

1. The respondent’s applications for summary dismissal of the administrative review application are refused.

2. No order for costs with respect to the applications for summary dismissal.

3. The Tribunal determines to take no further action with respect to the administrative review application in accordance with section 55(2) of the Privacy and Personal Information Protection Act 1998.

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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: 02 August 2021