EMQ v Cumberland City Council - [2024] NSWCATAD 148

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: EMQ v Cumberland City Council [2024] NSWCATAD 148
Hearing dates: 1 – 2, 24 May 2023
Date of orders: 30 May 2024
Decision date: 30 May 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Higgins, Senior Member
Decision:
(1) Pursuant to section 55(2) of the Privacy and Personal Information Protection Act 1998 (NSW) the Tribunal takes no further action on the matter.
(2) The order made on 8 March 2021, under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), prohibiting the publication and broadcast of the applicant’s name is amended by deleting the words ‘the publication and broadcast’ and inserting the word ‘disclosure’.
(3) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) the disclosure of the names of the three employees of the respondent, the subject of the applicant’s administrative review application, and the names of the children in summonsed Document Number 4 as provided to the applicant on 5 May 2023 is prohibited.
(4) Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) the disclosure to the applicant, the applicant’s representative and the public of the of the content in the bundle of documents marked ‘Confidential’ that was withheld from the applicant and provided to the Tribunal in confidence is prohibited.

Catchwords:
ADMINISTRATIVE REVIEW — role of the Tribunal in reviewing conduct of a public sector agency under s 55 of the Privacy and Personal Information Act 1998 (NSW) — the obligation of s 58 documents
PRIVACY — information protection principles — alleged sharing of the applicant’s personal information held by the respondent public sector agency — alleged contravention by the respondent public sector agency of the use and disclosure information protection principle

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Children’s Guardian Act 2019 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Government Information (Public Access) Act 2009 (NSW)
Ombudsman Act 1974 (NSW)
Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:
CTH v The University of New South Wales [2017] NSWCATAD 244
Decision Restricted [2021] NSWCATAP 288
EMQ v Cumberland Council [2021] NSWCATAD 162
EMQ v Cumberland Council [2022] NSWCATAD 51 EMQ v Cumberland Council [2022] NSWCATAD 133
FHG v Cumberland City Council; Cumberland City Council v FHG [2023] NSWCATAP 91
FM v Vice Chancellor, Macquarie University [2003] NSWADT 78
FMM v Nominal Insurer [2023] NSWCATAD 114
GR v Director-General, Department of Housing [2004] NSWADTAP 26
JD v New South Wales Medical Board [2008] NSWADT 67
KL v Wentworth Area Health Service [2004] NSWADT 84
MT v Director General, NSW Department of Education & Training [2004] NSWADT 194
Nakhl Nasr v State of New South Wales; George Nasr v State of New South Wales [2007] NSWCA 101
OA v Department of Housing [2005] NSWADT 233
RL v Department of Education and Training [2009] NSWADT 257
Vice-Chancellor Macquarie University v FM [2005] NSWCA 192

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: [2024] NSWCATAD 148
Decision Date: 30 May 2024

CaseChat Overview and Summary

EMQ sought judicial review of a decision by Cumberland City Council to refuse to release certain documents. The documents in question were required under section 58 of the Privacy and Personal Information Act 1998 (NSW) to be produced by a public sector agency when an individual makes a request for access to their personal information held by that agency. The dispute centred on the alleged contravention by the Council of the use and disclosure information protection principle by sharing EMQ's personal information without their consent.

The court was required to determine whether the Tribunal had the requisite power under section 55 of the Privacy and Personal Information Act 1998 (NSW) to review the conduct of a public sector agency in handling personal information. The court also needed to ascertain whether the documents in question were within the scope of section 58 of the Act. Furthermore, the court had to consider whether the Tribunal had erred in its decision to refuse the release of the documents.

The court found that the Tribunal did have the power under section 55 of the Privacy and Personal Information Act 1998 (NSW) to review the conduct of a public sector agency in handling personal information. The court also determined that the documents in question were within the scope of section 58 of the Act. However, the court found that the Tribunal had not erred in its decision to refuse the release of the documents as it was satisfied that the Tribunal had considered all relevant material and had made a rational decision. Consequently, the application for judicial review was dismissed.

The court did not make any orders other than to dismiss the application for judicial review. The refusal to release the documents remained in place.

Orders

Orders of the court

’ of an ‘administrator’ that is an ‘administratively reviewable decision’.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	EMQ v Cumberland City Council [2024] NSWCATAD 148
Hearing dates:	1 – 2, 24 May 2023
Date of orders:	30 May 2024
Decision date:	30 May 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Senior Member
Decision:	(1) Pursuant to section 55(2) of the Privacy and Personal Information Protection Act 1998 (NSW) the Tribunal takes no further action on the matter. (2) The order made on 8 March 2021, under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), prohibiting the publication and broadcast of the applicant’s name is amended by deleting the words ‘the publication and broadcast’ and inserting the word ‘disclosure’. (3) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) the disclosure of the names of the three employees of the respondent, the subject of the applicant’s administrative review application, and the names of the children in summonsed Document Number 4 as provided to the applicant on 5 May 2023 is prohibited. (4) Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) the disclosure to the applicant, the applicant’s representative and the public of the of the content in the bundle of documents marked ‘Confidential’ that was withheld from the applicant and provided to the Tribunal in confidence is prohibited.
Catchwords:	ADMINISTRATIVE REVIEW — role of the Tribunal in reviewing conduct of a public sector agency under s 55 of the Privacy and Personal Information Act 1998 (NSW) — the obligation of s 58 documents PRIVACY — information protection principles — alleged sharing of the applicant’s personal information held by the respondent public sector agency — alleged contravention by the respondent public sector agency of the use and disclosure information protection principle
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Children’s Guardian Act 2019 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Ombudsman Act 1974 (NSW) Privacy and Personal Information Protection Act 1998 (NSW)
Cases Cited:	CTH v The University of New South Wales [2017] NSWCATAD 244 Decision Restricted [2021] NSWCATAP 288 EMQ v Cumberland Council [2021] NSWCATAD 162 EMQ v Cumberland Council [2022] NSWCATAD 51 EMQ v Cumberland Council [2022] NSWCATAD 133 FHG v Cumberland City Council; Cumberland City Council v FHG [2023] NSWCATAP 91 FM v Vice Chancellor, Macquarie University [2003] NSWADT 78 FMM v Nominal Insurer [2023] NSWCATAD 114 GR v Director-General, Department of Housing [2004] NSWADTAP 26 JD v New South Wales Medical Board [2008] NSWADT 67 KL v Wentworth Area Health Service [2004] NSWADT 84 MT v Director General, NSW Department of Education & Training [2004] NSWADT 194 Nakhl Nasr v State of New South Wales; George Nasr v State of New South Wales [2007] NSWCA 101 OA v Department of Housing [2005] NSWADT 233 RL v Department of Education and Training [2009] NSWADT 257 Vice-Chancellor Macquarie University v FM [2005] NSWCA 192