EJE v Service NSW and Commissioner for Fair Trading

[2021] NSWCATAD 62

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

EJE v Service NSW and Commissioner for Fair Trading [2021] NSWCATAD 62

Hearing dates:

23 November 2020

Date of orders:

16 March 2021

Decision date:

16 March 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

A Christie, Senior Member

Decision:

The interlocutory application of the Respondents for the dismissal of the AR Application is granted and the order of the Tribunal is as follows:

(1) The Applicant's application to the Tribunal dated 6 July 2020 is dismissed under s55(1)(b) of the Civil and Administrative Tribunal Act 2013.

Catchwords:

PRACTICE AND PROCEDURE - Privacy and Personal Information Protection Act - application for dismissal under section 55(1)(b) of the Civil and Administrative Tribunal Act 2013 - what constitutes an internal review request - jurisdiction of the Tribunal

Legislation Cited:

Administrative Decisions Review Act 1997

Administrative Decisions Tribunal Act 1977 

Civil and Administrative Tribunal Act 2013

Fair Trading Act 1987

Government Information (Public Access) Act 2009

Privacy and Personal Information Protection Act 1998

Cases Cited:

Alchin v Rail Corporation NSW [2012] NSWADT 142

CYL v YZA [2017] NSWCATAP 105

DHU v Commissioner of Police, NSW Police Force [2018] NSWCATAD 126

DHU v Commissioner of Police, NSW Police Service [2018] NSWCATAP 282

GA v Commissioner of Police, NSW Police [2004] NSWADT 254

Long v Metroni Pty Ltd [2019] NSWCATAP 196

Payne v Haski [2018] NSWCATAD 115

PC v University of New South Wales [2005] NSW ADTAA 72

State Electricity Commission of Victoria v Rabel [1998] 1 VR 102

Y v Director General, Department of Education & Training [2001] NSWADT 149

Category:

Procedural rulings

Parties:

EJE (Applicant)
Service NSW (First Respondent)
Commissioner for Fair Trading (Second Respondent)

Representation:

Solicitors:
Applicant (Self Represented)
Crown Solicitor (Respondents)

File Number(s):

2020/00200690

Publication restriction:

The publication of the name of the Applicant is prohibited under s64 of the Civil and Administrative Tribunal Act 2013.

REASOns for decision

1. In these Reasons for Decision the name of the Applicant has been anonymised so as to preserve the privacy of their personal affairs. The Applicant is referred to as EJE.

2. The Applicant lodged an application for administrative review with the Tribunal under s55 of the Privacy and Personal Information Protection Act 1998 (PPIP Act) on 6 July 2020 (AR Application). The stated grounds for the AR Application are:

Breach of privacy. Fair Trading refuses to act on my complaints properly and my one complaint no. turned into 3 numbers. My identity is being used fraudulently in Fair Trading. Service NSW states I spoke to them in relation to fines received in Lithgow. I have never been to Lithgow or received fines there nor spoke to Service NSW about it.

3. The Annexures to the AR Application contain a number of documents obtained by the Applicant under the Government Information (Public Access) Act 2009 (GIPA Act) and the handwritten comments of the Applicant.

4. On 23 October 2020 the Respondent filed an interlocutory application seeking an order dismissing the AR Application (Dismissal Application) pursuant to s55(1)(b) of the Civil and Administrative Tribunal Act 2013 (CAT Act) on the basis that the proceedings are frivolous, vexatious or otherwise misconceived or lacking in substance and that:

The Tribunal does not have jurisdiction to hear this application … because there was no internal review application lodged in respect of the conduct that is the subject of the [AR Application], prior to the [AR Application] being filed.

5. The issue that the Respondent has raised which is to be considered in this Dismissal Application is whether, on the evidence before me, the Applicant had made an application for internal review prior to the AR Application being filed covering the scope of the AR Application for the purposes of the requirements of s53 PPIP Act.

6. For the reasons set out below, I have decided to dismiss the AR Application pursuant to s55(1)(b) of the CAT Act.

Background

7. The AR Application attached as Annexures numerous documents and handwritten notes of the Applicant primarily detailing a number of complaints made to the Respondents (or other agencies now handled by/under the responsibility of the first Respondent).

8. On 4 September 2020, after the first case conference on 4 August 2020, the Applicant sent an email to the Respondents' legal representative requesting a review and investigation of whether there had been a privacy breach arising from "information collected, stored and disclosed that is inaccurate within Department of Fair Trading and Service NSW … as it is evident the documentation clearly shows Fair Trading and Service NSW holds inaccurate information" (4 September Email).

9. On 7 September 2020 the legal representative of the Respondents responded to the 4 September Email summarising the Respondents' understanding of the 4 September Email and the Annexures to the AR Application, concluding that there was no breach of s16 PIPP Act as "[Service NSW] and Fair Trading are not in a position to conclude that any inaccurate information about you is being collected, stored or disclosed" (7 September Letter).

10. In the 7 September Letter the Respondents also noted that the Applicant may apply under s15 PIPP Act to "alter the personal information each agency holds about you to ensure it is accurate".

11. Pursuant to the Tribunal's Order that by 11 September 2020 the Applicant must confirm if they will withdraw the AR Application, on 8 September 2020 the Applicant sent two emails in response to the 7 September Letter informing the Respondents that they will not be withdrawing the AR Application "based on the grounds Fair Trading and Service NSW are failing to ensure information held is accurate and not misleading".

12. After the second case conference and the Tribunal's Order that by 30 September 2020 the Applicant is to give to the Tribunal and all other parties any further material on which the Applicant relies, including submissions which outline their case by reference to the material which they rely, on 23 September 2020 the Applicant filed a document entitled "Document" which lists 25 items by reference to certain sections of the AR Application which the Applicant requested be addressed by the Respondents.

13. The Respondents submit that during the directions hearing on 27 October 2020 the Applicant explained that: (i) the AR Application was filed in June 2020 after the Applicant received documents from the Respondents (i.e. all the agencies with which the Applicant was dealing at the time) in response to an application under the GIPA Act; and (ii) that the Applicant went straight to the Tribunal to conduct the privacy review because they did not trust the agencies to do it.

14. In response to the Tribunal's Order for the Applicant to give the Tribunal and the Respondents their material in reply to the Dismissal Application, on 29 October 2020 the Applicant filed a number of documents sent and received by the Applicant during September and October 2020.

15. None of the AR Application, the Document nor any subsequent written submissions or evidence submitted by the Applicant specified precisely the document or documents that the Applicant claimed comprise an application for internal review under s53 PPIP Act (IR Request). The Hearing proceeded on the basis that the IR Request, if any, would be comprised in one or more of the online complaints made by and/or the follow up emails of the Applicant to the Respondents in respect of such complaints which are in the Annexures to the AR Application and the Respondents' Bundle of Documents submitted on 10 November 2020 (together referred to as the Applicant's Complaints).

The Applicant's Complaints

16. I do not propose to identify all matters raised in the Applicant's Complaints. However, it is necessary to outline those parts of the Applicant's Complaints that are most relevant to the AR Application and these Dismissal Application proceedings as a possible IR Request.

17. Based on the AR Application, the Document and the submissions of the Applicant, in particular during the hearing, the Applicant submits that the online complaint emails and web chat in relation to the Applicant's Complaints numbered 1261850, 10114807 and 10114745 and all correspondence and discussions in relation to them, submitted as Annexures to the AR Application and included the Respondents' Bundle of Documents, constitute the Applicant's relevant IR Request to the Respondents.

18. The Applicant's Complaint numbered 12618540 is a request made by the Applicant to the first Respondent with respect to the amendment application filed by the Applicant with the NSW Registry of Births, Deaths and Marriages for the Applicant and certain of the Applicant's family members (RBDM Amendment Application). In summary, on 11 and 12 May 2020 the Applicant requested that amendments be made to the receipts given in respect of the RBDM Amendment Application to name the Applicant consistently on each receipt. On 14 May 2020 the Applicant telephoned an officer of the first Respondent and requested that the mailing address be changed on the RBDM Amendment Application. This complaint was referred to the NSW Registry of Births, Deaths and Marriages and is the subject of separate proceedings presently in the Tribunal (Tribunal proceedings 2020/00194180).

19. The Applicant's Complaints numbered 10114807 and 10114745 relate to an issue raised by the Applicant with the second Respondent on 12 March 2020, an allegation of identity theft, misuse and fraudulent activity performed by real estate agents. These included allegations that multiple leases were lodged using the identity of the Applicant and the Applicant's partner against incorrect properties and multiple electricity accounts were incorrectly held in the Applicant's name. From 13 March 2020 until 31 March 2020 the Applicant and a staff member of the second Respondent communicated with respect to these complaints.

20. The hearing took place on 23 November 2020 by telephone (Hearing).

Applicable legislation

21. Section 55(1) CAT Act provides (most relevantly) that the Tribunal may dismiss any proceedings:

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

22. In Alchin v Rail Corporation NSW [2012] NSWADT 142 Judicial Member Wright SC (as he then was) examined s73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1977 which wasthepredecessor provision to s55(1)(b) CAT Act (also see Long v Metroni Pty Ltd [2019] NSWCATAP 196 at [77]). As to the meaning of "misconceived" and "lacking in substance" he said, at [25]:

… With respect to a similar provision found in the Equal Opportunity Act 1984 (Vic), Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at [14] said:

"misconceived" and "lacking in substance" have not, so far as I am aware, been used in this context before though each expression is commonly used by lawyers, the one connoting a misunderstanding of legal principle and the other connoting an untenable proposition of law or fact. If one may discern, in these provisions, an attempt to express the powers of tribunals in non-technical language, then "misconceived" would represent a claim which did "not disclose a cause of action" ..., whereas "lacking in substance" might be seen to represent a claim where the defendant could obtain summary judgment ...

23. As found by the Tribunal in Payne v Haski [2018] NSWCATAD 115 at [30], the jurisdiction of the Tribunal is specified in Part 3 of the CAT Act and s28(1) CAT Act provides that:

The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under [the CAT Act] or any other legislation.

24. The PPIP Act confers on the Tribunal its jurisdiction to review the conduct of concern alleged to be in breach of the PPIP Act. Part 5 of the PPIP Act establishes the mechanism whereby an agency must be given the opportunity to review its own conduct regarding an alleged breach of an Information Protection Principle (IPP) before an individual is entitled to seek external review in the Tribunal. Section 52 PPIP Act relevantly provides:

(1)   This Part applies to the following conduct:

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

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

25. Section 53(1) PPIP Act relevantly provides:

(1)   A person ("the applicant") who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct.

26. Section 53(3) PPIP Act sets out the formal requirements of an application for internal review by an agency (ie an IR Request in this case) including, most relevantly, that it:

(a)   be in writing, and …

(d)   be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the Applicant first became aware of the conduct the subject of the application, …

27. Section 53(6) PPIP Act gives an applicant the right to make an application to the Tribunal under s55 PPIP Act for administrative review under the Administrative Decisions Review Act 1997 of the conduct of concern raised in the internal review application if the internal review by the agency is not completed within 60 days from the date of receipt by the agency of the application for internal review. Also, where the internal review is conducted within the 60 days, s55(1) PPIP Act provides a right to apply for review as follows:

If a person who has made an application for internal review under section 53 is not satisfied with:

(a)    the findings of the review, or

(b)   the action taken by the public sector agency in relation to the application,

the person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct that was the subject of the application under section 53.

28. In GA v Commissioner of Police, NSW Police [2004] NSWADT 254 (GA), Deputy President Hennessy stated at paragraph [4], as regards the Tribunal's jurisdiction:

4. There are three pre-conditions to the Tribunal's jurisdiction under s55:

• The person must have made an application for internal review under s53;

•   The person must be dissatisfied with the findings of the review or the action taken by the public sector agency in relation to the application; and

•   The person must be asking the Tribunal to review the conduct that was the subject of the application.

29. For completeness I would add, to the end of the second pre-condition of Deputy President Hennessy in GA at [4] (as set out in [28] above), or if 60 days has elapsed since the application for internal review was received by the agency and the internal review has not been completed.

30. At paragraphs [5] to [7] of GA Deputy President Hennessy summarised the requirements for an internal review application as follows:

5 Section 53. Under s53(1) "a person ... who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct." The person does not need to identify the information protection principles or privacy code of practice on which he or she relies. (GL v Director-General, Department of Education and Training [2003] NSWADT 166 at [26]; JD v Director General, NSW Department of Health [2004] NSWADT 7 (revised).) But the person does need to identify the conduct about which he or she is aggrieved. The first question is the extent to which an applicant must identify the conduct that he or she is asking to be reviewed for the request to be regarded as an application under s53.

6 The long title of the PPIP Act includes the following purpose: "to provide for the protection of personal information, and for the protection of the privacy of individuals generally". In view of that broad purpose and the beneficial nature of the legislation, s53(1) should be interpreted widely to ensure that applicants are not unnecessarily denied the right to have conduct about which they are aggrieved internally or externally reviewed. Nevertheless, the consequences of a broad interpretation need to be considered. The broadest possible interpretation of s53(1) is that it would be sufficient for an applicant to advise an agency that he or she was aggrieved by some unidentified conduct in order to be entitled to a review of that conduct. That interpretation would lead to the absurd situation that an agency would have to identify and investigate every transaction or communication relating to the personal information of the applicant which could possibly constitute a breach of an information protection principle or a privacy code of practice or the disclosure of personal information kept in a public register: s52.

7    In my view, an applicant's entitlement to an internal review (and ultimately an external review) depends on that person identifying the conduct about which they are aggrieved in sufficient detail to allow the agency to determine whether it constitutes a breach of an information protection principle or a privacy code of practice or the disclosure of personal information kept in a public register. If the application does not identify the conduct with that level of particularity, then the agency should initially request further information from the Applicant. If an Applicant does not provide that information within a reasonable time, then the agency will be justified in declining to review the conduct.

31. The approach which has been consistently applied by the Tribunal to applying the requirements of GA to determine whether a particular communication of a member of the public to an agency is, in fact, a request for internal review under the PPIP Act and thus whether the Tribunal has jurisdiction is summarised in PC v University of New South Wales [2005] NSW ADTAA 72 (PC) at [28] and [29] by the Appeal Panel:

28   In arriving at that factual determination, the Tribunal identified the correct test to be applied. In order to constitute an application for internal review, the document or documents relied upon by the applicant, must upon their face, reasonably convey to the respondent agency, that an application for internal review is sought. The letter from the appellant to the respondent of 28 November 2004, cannot, on its face, reasonably be interpreted as an application for internal review.

29 There is no power in the Tribunal to dispense with the requirement for an application for internal review, pursuant to section 53 Privacy and Personal Information Protection Act 1998. It follows, accordingly, that if the pre-requisite to trigger the jurisdiction of the Tribunal is absent, the Tribunal has no jurisdiction to entertain the appellant's application for review, there being no reviewable decision, nor a failure on the part of the respondent to respond to a request for an internal review.

32. The summary in PC set out in paragraph [31] above was also recently approved by the Appeal Panel in DHU v Commissioner of Police, NSW Police Service [2018] NSWCATAP 282 (DHU) at [43].

33. The Tribunal has not rigidly required that a request for review of the conduct of concern (i.e. IR Request in this case) expressly state that the request is made under the PPIP Act. However, the Tribunal has consistently required that the surrounding context and the contents of the communication(s) reasonably convey to the agency that 'a statutory right is being invoked': see Y v Director General, Department of Education & Training [2001] NSWADT 149 at [16] and DHU v Commissioner of Police, NSW Police Force [2018] NSWCATAD 126 at [43]. That statutory right being the right to have the alleged "conduct" of the agency reviewed. As noted by the Appeal Panel in CYL v YZA [2017] NSWCATAP 105 (CYL) at [58], the word "conduct" in s52 PPIP Act means:

58      … ['Conduct'] is the expression used in this area of the law to describe action by the agency or circumstances involving the agency that might amount to a possible contravention of an information protection principle: see PPIPA s52. There needs to be material that can be understood by the agency, fairly read, as connecting the action or circumstances of concern to a principle, whether or not the principle itself is actually specified by the application.

34. In DHU the Appeal Panel stated at [49], after considering paragraph [58] of CYL (quoted in paragraph [33] above), that:

Accordingly, the Tribunal has regularly accepted that factors such as references (direct or indirect) to the PPIP Act, privacy, personal information, an information protection principle, or a remedy of the kind referred to in s53(7) of the PPIP Act are matters that can be taken into account in determining whether the communication relied on by an applicant, does on its face, reasonably convey to the respondent agency, that an application for internal review is being sought. No single factor is necessarily determinative as to whether the test is met, it will depend on the particular circumstances of each individual case that are to be objectively assessed in making a finding that the communication is in fact a request for internal review under s53 of the PPIP Act.

The Respondents' submissions

35. The Respondents did not call any witnesses at the Hearing and relied on written and oral submissions and the documentary evidence submitted prior to the Hearing.

36. The Respondents accept, at [31] of the Submissions of the Respondents dated 10 November 2020 (SR), that the test for whether the Applicant sought an internal review is an objective one and does not require the Applicant to expressly refer to the PPIP Act or any of the IPPs but submitted that there needs to be material that can be understood, fairly read, as connecting the action or circumstance of concern to such a principle. In the SR the Respondents submit, most relevantly, that:

[38] … the documentation related to those [Applicant's Complaints], on their face, do not reasonably convey that the applicant was seeking an internal review under s. 53 of the PPIP Act. The documents lodged by the applicant:

a. do not refer to "privacy", the "Privacy and Personal Information Protection Act 1998" or the substance of an "information protection principle";

b. do not seek any formal remedies, a "review" or an "internal review";

c. appear, in substance, to complain about the actions of private sector third parties (such as, real estate agents) and not the respondents; and

d. were lodged via the NSW Fair Trading complaint online portal, in circumstances where the second respondent exercises a statutory function on behalf of the Secretary, Department of Customer Service to "receive complaints from persons on matters (including fraudulent or unfair practices) relating to the supply of goods or services, or the acquisition of interests in land, and deal with any such complaint" under s. 9(1)(c) of the Fair Trading Act 1987.

[39]    It must also be noted that the applicant has been unable to identify any application for internal review prior to the [AR Application] having been filed on 6 July 2020. In particular, the respondents note the following:

a. first, during the directions hearing on 27 October 2020, the applicant noted that after [they] received documents from the Department in response to an application under the GIPA Act that [they] "went straight to the tribunal to conduct a privacy review because [they] did not trust the agencies to do it"; and

b. secondly, the 28 October Document filed by the applicant contains a list of the correspondence between the applicant and the respondent (via their legal representatives) for the period 20 August 2020 to 22 October 2020. None of the material contained in the 28 October Document discloses an application for internal review made prior to the [AR Application].

[40]   Accordingly, the Tribunal should be satisfied that there was no internal review application lodged in respect of the conduct that is the subject of the [AR Application] prior to 6 July 2020.

The Applicant's submissions

37. The Applicant did not call any witnesses at the Hearing and relied on written and oral submissions and the documentary evidence submitted prior to the Hearing. Primarily the Applicant relied on the AR Application and the numerous Annexures to it.

38. The Applicant's written submissions were directed to addressing the Respondents' seeking to have the proceedings dismissed at an earlier directions hearing, as well as the timeliness and the limited nature of information provided to the Applicant by the Respondents.

39. The Applicant's oral submissions in support of their written submissions addressed (and I paraphrase and summarise) (i) the underlying issues in the Applicant's complaints and the failures of the Respondents to adequately address them; (ii) that the Applicant also made an oral complaint to the second Respondent over the phone (following the complaint made via the website); and (iii) that the 7 September Letter acknowledges the Applicant's IR Request and, is in fact, the Respondents' internal review decision in response to the Applicant's IR Request.

40. During the Applicant's submissions in the Hearing I asked the Applicant to comment on the Respondents' position that, prior to the AR Application, there was no (and nothing that could be reasonably take by the Respondent to be a) written request for internal review of any conduct of concern allegedly (or for which it could reasonably be taken as alleged) to be in breach of the PPIP Act or the IPPs and to direct me specifically to where such could be found in the Applicant's evidence. The Applicant's response was that the Applicant's Complaints should have been understood by the Respondents as an application for internal review under s53 PPIP Act.

Consideration and decision

41. The Respondents seek to have the AR Application dismissed under s55(1)(b) of the CAT Act as being "frivolous, vexatious or otherwise misconceived or lacking in substance" as the Tribunal does not have jurisdiction to hear the AR Application because no IR Request was submitted to either of the Respondents before the AR Application was submitted on 6 July 2020.

42. After considering all of the evidence and submissions presented to me, I find that there is nothing in the Applicant's Complaints or in any other documents of the Applicant prior to the filing of the AR Application that, on their face, reasonably convey to either of the Respondents that the Applicant was seeking an internal review of any relevant conduct of concern under the PPIP Act.

43. While the 4 September Email, in my view, does constitute a written request by the Applicant for an internal review by the Respondents of alleged conduct of concern under the PPIP Act, it has come some months after the AR Application was filed and thus cannot be relied on to trigger the Tribunal's jurisdiction under s55 PPIP Act in relation to the AR Application.

44. Given my finding above that there is no IR Request in this case (i.e. a request by the Applicant for an internal review by either of the Respondents in respect of relevant alleged conduct of concern) prior to the AR Application, the Tribunal has no jurisdiction to hear the AR Application under s55 PPIP Act.

45. In my view the Tribunal's lack of jurisdiction under s55 PPIP Act to hear the AR Application is clearly with the meaning of "misconceived or lacking in substance" under s55(1)(b) CAT Act.

Orders

The interlocutory application of the Respondents for the dismissal of the AR Application is granted and the order of the Tribunal is as follows:

1. The Applicant's application to the Tribunal dated 6 July 2020 is dismissed under s55(1)(b) of the Civil and Administrative Tribunal Act 2013.

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

Amendments

13 May 2021 - Catchword amended

Decision last updated: 13 May 2021