EJE v Department of Education

The matter of EJE v Department of Education involved an application by the applicant for administrative review of a decision by the Department of Education. The applicant sought to challenge the Department's decision to refuse to amend personal information held by the Department. The application was brought before the Civil and Administrative Tribunal (CAT) under the Civil and Administrative Tribunal Act 2013 (NSW) and the Privacy and Personal Information Protection Act 1998 (NSW). The primary issue for the court was whether the Tribunal had jurisdiction to review the Department's decision, given that the applicant had not sought an internal review within the prescribed time limit.

The court held that the Privacy Act established a two-step review process, where an aggrieved person must first seek internal review by the relevant agency within six months of becoming aware of the conduct in question. If unsatisfied with the outcome of the internal review, the aggrieved person may then apply to the Tribunal for an administrative review. The court noted that the statutory requirement to seek internal review within six months was mandatory and could not be waived by the agency. The Tribunal did not have jurisdiction to review the Department's decision not to extend the time in which an internal review application could be made. Therefore, the applicant's application for administrative review was dismissed.

In light of the above, the court made the following orders: (1) A hearing of the respondent's Application for Miscellaneous Matters (summary dismissal) filed on 26 October 2022 is dispensed with in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). (2) The applicant's Application for Administrative Review is dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW). (3) The question of costs is reserved. (4) If the applicant wishes to make any further submission on the issue of costs, she must give that submission to the Tribunal and the agency by 9 June 2023. (5) The agency may make any further submission on the issue of costs, strictly limited to reply, by 16 June 2023. (6) The Tribunal proposes to dispense with a hearing on the issue of costs pursuant to s 55(2) of the Civil and Administrative Tribunal Act 2013 (NSW). If either party contends a hearing is required, they are to set out their reasons in their submissions.