Else v Service NSW - [2021] NSWCATAD 172

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Else v Service NSW [2021] NSWCATAD 172
Hearing dates: 17 March 2021
Date of orders: 21 June 2021
Decision date: 21 June 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: A Starke, Senior Member
Decision:
The Tribunal has decided not to take any action on the matter.

Catchwords:
ADMINISTRATIVE LAW — Application for review of conduct under Privacy and Personal Information Protection Act 1988 — Where alleged conduct was the use of personal information for a purpose other than that for which it was collected — Whether that conduct contravenes information protection principle 10 under s 17 of that Act.

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Privacy and Personal Information Protection Act 1998 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Public Health Act 2010 (NSW)
Service NSW (One-stop Access to Government Services) Act 2013 (NSW)

Cases Cited:
ALZ v SafeWork NSW [2017] NSWCATAP 51
FM v Vice Chancellor, Macquarie University [2003] NSWADT 78
Jones v Dunkel 1959 HCA 8; (1959) 101 CLR 298; [1959] ALR 367
MG v Department of Educyation and Training [2004] NSWADT 137
Mulholland v Australian Electoral Commission (2004) 220 CLR 181
NK v Northern Sydney Central Coast Area Health Service [2010] NSWADT 258
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) HCA 52; [2004] 219 CLR 165; (2004) 211 ALR 342

Texts Cited:
Nil

Category: Principal judgment
Parties: Sylvia Else (Applicant)
Service NSW (Respondent)
Representation:
Counsel:
Scott Robertson (Respondent)
Solicitors:
Applicant (Self-Represented)
Crown Solicitor (Respondent)

File Number(s): 2020/00236194
Publication restriction: Nil

REASONS FOR DECISION

Introduction

The applicant applied to the Tribunal for an administrative review of the conduct of Service NSW (“SNSW”) which had been the subject of an internal review application under s 53 of the Privacy and Personal Information Protection Act 1998 (NSW) (“the PPIP Act”). The conduct complained of was SNSW’s use of the applicant’s personal information for the purpose of sending her an email on 4 April 2020 (“the Email”) urging her (and around 4.6M other members of the public) to take steps “to slow the spread of COVID-19 and save lives”.
By order made on 22 September 2020 under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication or broadcast of the name of the applicant was prohibited. Subsequently, by order made on 27 October 2020, the prohibition order made on 22 September 2020 was revoked. At the hearing on 16 March 2021, Ms Else confirmed that she was content to have her name disclosed in connection with her application. Accordingly, the previous pseudonym ‘EKD’ that had been adopted to protect her identity will not be used in these reasons.

Issue for determination

In undertaking an administrative review of the conduct complained of, the issue to be determined is whether, in using the applicant’s personal information to send the Email to her, SNSW breached s 17 of the PPIP Act.

Evidence and material…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Else v Service NSW

Details

AGLC: Else v Service NSW [2021] NSWCATAD 172
Case: [2021] NSWCATAD 172
Decision Date: 21 June 2021

CaseChat Overview and Summary

The applicant sought a review of the conduct of the respondent under the Privacy and Personal Information Protection Act 1998. The applicant alleged that the respondent had used her personal information for a purpose other than that for which it was collected, which she contended contravenes the information protection principle 10 under section 17 of the Act. The case was heard in the Civil and Administrative Tribunal of New South Wales. The primary legal issue before the Tribunal was whether the respondent's conduct contravened information protection principle 10, and if so, what remedy, if any, was appropriate.

The Tribunal considered the relevant provisions of the Privacy and Personal Information Protection Act 1998, and the evidence presented by both parties. The Tribunal noted that the respondent had provided evidence to support its claim that the use of the applicant's personal information was necessary for a lawful purpose and did not contravene information protection principle 10. The Tribunal also considered the applicant's arguments, but ultimately found that the respondent's conduct did not contravene information protection principle 10. The Tribunal concluded that the respondent's conduct was reasonable and lawful, and that no remedy was appropriate in this case.

The Tribunal dismissed the applicant's application for review of the respondent's conduct. The Tribunal did not make any orders in relation to the applicant's application. The Tribunal noted that it had considered all of the evidence and arguments presented by both parties, and had carefully considered the relevant provisions of the Privacy and Personal Information Protection Act 1998. The Tribunal was satisfied that its decision was in accordance with the law and the facts of the case.

Orders

Orders of the court

The Tribunal has decided not to take any action on the matter.

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:	Else v Service NSW [2021] NSWCATAD 172
Hearing dates:	17 March 2021
Date of orders:	21 June 2021
Decision date:	21 June 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Starke, Senior Member
Decision:	The Tribunal has decided not to take any action on the matter.
Catchwords:	ADMINISTRATIVE LAW — Application for review of conduct under Privacy and Personal Information Protection Act 1988 — Where alleged conduct was the use of personal information for a purpose other than that for which it was collected — Whether that conduct contravenes information protection principle 10 under s 17 of that Act.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Public Health Act 2010 (NSW) Service NSW (One-stop Access to Government Services) Act 2013 (NSW)
Cases Cited:	ALZ v SafeWork NSW [2017] NSWCATAP 51 FM v Vice Chancellor, Macquarie University [2003] NSWADT 78 Jones v Dunkel 1959 HCA 8; (1959) 101 CLR 298; [1959] ALR 367 MG v Department of Educyation and Training [2004] NSWADT 137 Mulholland v Australian Electoral Commission (2004) 220 CLR 181 NK v Northern Sydney Central Coast Area Health Service [2010] NSWADT 258 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) HCA 52; [2004] 219 CLR 165; (2004) 211 ALR 342
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Sylvia Else (Applicant) Service NSW (Respondent)
Representation:	Counsel: Scott Robertson (Respondent) Solicitors: Applicant (Self-Represented) Crown Solicitor (Respondent)
File Number(s):	2020/00236194
Publication restriction:	Nil