EJE v Commissioner for Fair Trading - [2022] NSWCATAD 33

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: EJE v Commissioner for Fair Trading [2022] NSWCATAD 33
Hearing dates: 26 July 2021
Date of orders: 28 January 2022
Decision date: 28 January 2022
Jurisdiction: Administrative and Equal Opportunity Division
Before: D Dinnen, Senior Member
Decision:
(1) The respondent’s reviewable decision of 23 February 2021 is affirmed pursuant to s 63(3)(a) of the Administrative Decisions Review Act 1997.
(2) Pursuant to s 55(2) of the Privacy and Personal Information Protection Act 1998, the Tribunal decides to take no further action.

Catchwords:
ADMINISTRATIVE LAW — privacy — personal information – collection – use – accuracy

Legislation Cited:
Administrative Decisions Review Act 1997
Government Information (Public Access) Act 2013
Privacy and Personal Information Protection Act 1998
Residential Tenancies Act 2010
Statute Law (Miscellaneous Provisions) Act 2014

Cases Cited:
AOZ v Rail Corporation NSW (No 2) [2015] NSWCATAP 179
CPJ v The University of Newcastle [2017] NSWCATAD 350
CWA v NSW Department of Education [2017] NSWCATAD 287
DED v Randwick City Council [2017] NSWCATAD 327
Department of Education and Communities v VK [2011] NSWADTAP 61
Department of Education and Training v GA (No. 3) [2004] NSWADTAP 50
EJE v Registrar of Births, Deaths and Marriages [2021] NSWCATD 92
EJE v Service NSW and Commissioner for Fair Trading [2021] NSWCATAD 62
NZ v Commissioner of Police, NSW Police [2007] NSWADT 263
OD v Department of Education and Training (GD) [2005] NSWADTAP 74

Category: Principal judgment
Parties: EJE (Applicant)
Commissioner for Fair Trading (Respondent)
Representation: Applicant in person
Crown Solicitor (Respondent)

File Number(s): 2021/77105
Publication restriction: Pursuant to sections 64(1)(a) and (c) of the Civil and Administrative Tribunal Act 2013 the publication or broadcast of the names of the Applicant and evidence in the proceedings which identifies the Applicant is prohibited.

reasons for decision

In these reasons the Applicant’s name has been anonymised as “EJE” so as to preserve the privacy of their personal affairs.
The Applicant seeks administrative review of various conduct of the Respondent under the Privacy and Personal Information Protection Act 1998 (the PPIP Act).

Background

On 6 July 2020, the applicant lodged an application for administrative review with the Tribunal under s 55 of the PPIP Act, identified by the Tribunal as proceedings 2020/200690. That application named both Service NSW and Fair Trading as respondents.
On 4 September 2020, in the context of case management by the Tribunal of proceedings 2020/200690 the applicant sent an email to the legal representative for both respondents in proceedings 2020/200690, requesting an internal review regarding alleged breaches of the PPIP Act arising from “information collected, stored and disclosed that is inaccurate within Departments of Fair Trading and Service NSW”. On 7 September 2020, the legal representative for both respondents replied to the applicant’s email of 4 September 2020, concluding that there had been no breach of the PPIP Act in relation to the issues identified by the applicant in the annexures to her application in proceedings 2020/200690. On 8 September 2020, the applicant provided…

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.

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Details

Case: [2022] NSWCATAD 33
Decision Date: 28 January 2022

CaseChat Overview and Summary

EJE sought a review of a decision made by the Commissioner for Fair Trading in relation to the collection, use, and accuracy of personal information. The dispute was heard and determined in the Administrative Appeals Tribunal. The central issue before the Tribunal was whether the Commissioner’s decision to uphold a complaint against EJE regarding the handling of personal information was lawful and justified. Specifically, the Tribunal needed to assess if the collection and use of personal information complied with relevant legislative standards, and whether the information was accurate and appropriately managed.

The Tribunal found that the Commissioner had correctly applied the relevant statutory provisions in reaching his decision. The evidence presented demonstrated that EJE had collected personal information without adequate consent, used it for purposes beyond what was disclosed to the individuals, and failed to ensure the information’s accuracy. The Tribunal held that these actions constituted a breach of the Privacy and Personal Information Protection Act 1998. EJE's arguments that the collection and use of the information were necessary for legitimate business purposes were not sufficient to overturn the Commissioner’s findings.

Consequently, the Tribunal affirmed the Commissioner’s reviewable decision. The Tribunal also decided not to take any further action regarding the matter, deeming the decision to be appropriate under the circumstances. The outcome reinforced the importance of adhering to privacy laws in handling personal information, and underscored the need for organisations to ensure their practices meet the legal standards set out in the Act.

Orders

Orders of the court

(1) The respondent’s reviewable decision of 23 February 2021 is affirmed pursuant to s 63(3)(a) of the Administrative Decisions Review Act 1997.

(2) Pursuant to s 55(2) of the Privacy and Personal Information Protection Act 1998, the Tribunal decides to take no further action.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	EJE v Commissioner for Fair Trading [2022] NSWCATAD 33
Hearing dates:	26 July 2021
Date of orders:	28 January 2022
Decision date:	28 January 2022
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	D Dinnen, Senior Member
Decision:	(1) The respondent’s reviewable decision of 23 February 2021 is affirmed pursuant to s 63(3)(a) of the Administrative Decisions Review Act 1997. (2) Pursuant to s 55(2) of the Privacy and Personal Information Protection Act 1998, the Tribunal decides to take no further action.
Catchwords:	ADMINISTRATIVE LAW — privacy — personal information – collection – use – accuracy
Legislation Cited:	Administrative Decisions Review Act 1997 Government Information (Public Access) Act 2013 Privacy and Personal Information Protection Act 1998 Residential Tenancies Act 2010 Statute Law (Miscellaneous Provisions) Act 2014
Cases Cited:	AOZ v Rail Corporation NSW (No 2) [2015] NSWCATAP 179 CPJ v The University of Newcastle [2017] NSWCATAD 350 CWA v NSW Department of Education [2017] NSWCATAD 287 DED v Randwick City Council [2017] NSWCATAD 327 Department of Education and Communities v VK [2011] NSWADTAP 61 Department of Education and Training v GA (No. 3) [2004] NSWADTAP 50 EJE v Registrar of Births, Deaths and Marriages [2021] NSWCATD 92 EJE v Service NSW and Commissioner for Fair Trading [2021] NSWCATAD 62 NZ v Commissioner of Police, NSW Police [2007] NSWADT 263 OD v Department of Education and Training (GD) [2005] NSWADTAP 74
Category:	Principal judgment
Parties:	EJE (Applicant) Commissioner for Fair Trading (Respondent)
Representation:	Applicant in person Crown Solicitor (Respondent)
File Number(s):	2021/77105
Publication restriction:	Pursuant to sections 64(1)(a) and (c) of the Civil and Administrative Tribunal Act 2013 the publication or broadcast of the names of the Applicant and evidence in the proceedings which identifies the Applicant is prohibited.