ENS v Commissioner for Fair Trading

[2022] NSWCATAD 364

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

ENS v Commissioner for Fair Trading [2022] NSWCATAD 364

Hearing dates:

On the papers

Date of orders:

14 November 2022

Decision date:

14 November 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

P French, Senior Member

Decision:

The Tribunal determines not to take any action on the matter.

Catchwords:

ADMINISTRATIVE LAW – Privacy and Personal Information Protection Act 1998 – administrative review of a reviewable decision – administrative review of conduct of the agency

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW) – s 55

Civil and Administrative Tribunal Act 2013 (NSW) – ss 50, 64

Privacy and Personal Information Protection Act 1998 (NSW) – ss 4, 15, 16, 53, 55

Strata Schemes Management Act 2015 (NSW) – s 218

Cases Cited:

BMS v St Vincent’s Health Network Sydney Limited [2015] NSWCATAD 177

ALL v Sydney Local Health District [2020] NSWCATAD 174

WL v Randwick City Council [2007] NSWADTAP 58

Texts Cited:

Nil

Category:

Principal judgment

Parties:

ENS (Applicant)
Commissioner for Fair Trading (Respondent)

Representation:

ENS (Self Represented)
Department of Customer Service (Respondent)

File Number(s):

2021/00358023

Publication restriction:

(1) The publication or broadcast of the name of the applicant is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).
(2) The applicant is to be known by the pseudonym “ENS”.

REASONS FOR DECISION

Introduction

1. This is an application by ENS (the applicant) under section 55 of the Administrative Decisions Review Act 1997 (ADR Act) for an administrative review under section 55(1) of the Privacy and Personal Information Protection Act 1998 (PPIP Act) of conduct by the Commissioner for Fair Trading (the agency) which has been the subject of an internal review pursuant to s 53 of that Act which he alleges was in contravention of Information Protection Principles (IPP/IPPs) contained in Part 2, Division 1 of the PPIP Act. This application was made to the Tribunal on 17 December 2021 (the application).

2. For the reasons set out in greater detail following, the Tribunal has determined not to take any further action in relation to the matter. The Tribunal is not satisfied that there has been any contravention of an IPP by the agency that would provide grounds for any other order.

Publication restriction

3. When the applicant filed his application, he was assigned the pseudonym “ENS” by administrative action of the Divisional Registrar, pending consideration by the Tribunal of whether a pseudonym order ought to made under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The use of the pseudonym has never been put in issue by either party. In those circumstances I will make an order under s 64 continuing the use of the pseudonym.

Dispensing with a hearing

4. Section 50 of the NCAT Act sets out the circumstances in which hearings are required in proceedings before the Tribunal. It relevantly provides:

50   When hearings are required

(1)   A hearing is required for proceedings in the Tribunal except –

…

(c)   if the Tribunal makes an order under this section dispensing with a hearing, …

…

(2)   The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

(3)   The Tribunal must not make an order dispensing with a hearing unless the Tribunal has first –

(a)   afforded the parties an opportunity to make submissions about the proposed order, and

(b)   taken such submissions into account.

(4)   The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal; in accordance with the requirements of this Act, enabling legislation and the procedural rules.

(5)   This section does not prevent the Tribunal from holding a hearing even if it is not required.

5. At a case conference conducted on 24 January 2020, the Tribunal, differently constituted, made an order dispensing with a hearing. Both parties were present when that order was made and thus had the opportunity to make submissions in relation to the issue. I am also satisfied that the issues for determination can be adequately determined in the absence of the parties based on the documentary evidence and submissions they have filed.

Evidence and submissions

6. The following material has been considered in reaching this determination:

Applicant

1. Administrative Review Application Form filed on 17 December 2021,

2. Submissions filed on 18 February 2022 and Annexures,

3. Submissions filed on 15 March 2022,

4. Submissions filed 22 March 2022 and Annexures.

Agency

1. Section 58 documents filed on 21 January 2021,

2. Chronology of events filed on 21 January 2021,

3. Additional documents filed on 25 February 2021,

4. Submissions and additional documents filed on 11 March 2022.

Material facts

7. The applicant is the owner of a Lot in a strata scheme. I will anonymise the unit number of the Lot by referring to it as unit “B” below.

8. On 25 May 2021, the applicant lodged a Strata Mediation application with NSW Fair Trading concerning the strata scheme in which he lives (the strata scheme). In the section of the form headed “Applicant Type” the applicant selected “Other” and entered his “Role” as “Secretary”. In the section of the form headed “Respondent Details” the applicant selected “Other” and entered “Strata Committee for the Owners Corporation”. In the section of the form headed “Your Issue” the applicant selected a tick box with the following description: “Exercise of duties/functions on behalf of the Owners Corporation”.

9. The applicant also attached to his application form a word-processed document headed: “NSW Fair Trading Mediation Application” dated 25 May 2021 in which he sets out his complaint about the Strata Committee and the outcomes he sought from the mediation. In short summary, the dispute concerned the Strata Committee’s approval of quotations for work that was going to be carried out on a Lot within the strata scheme (which I will refer to as unit “A”). In a section of this document headed “Outcomes sought” the applicant states the following:

1. That individual strata committee members act in accordance with their obligations under the Strata Schemes Management Act.

2. This includes acting transparently and providing information and material requested by other members so that an informed decision can be made.

3. That an electronic copy of the original quote by [contractor] 2121 (sic) be forwarded by email to the Secretary and strata committee to ensure its integrity in light of the circumstances described and evidenced further below and in the annexure.

4. That no work commence or be paid in regard to item 3 of the strata committee meeting of 19 May 2021 based on the above [contractor] quote until the quotes resolved to be obtained in various Minutes and emails are obtained and assessed.

10. By letter dated 26 May 2022, sent to the applicant by email, Mr Stephen Ivancic, Team Leader, Strata and Community Living Specialist Services, for the agency wrote to the applicant concerning the proper parties for the mediation. That letter states:

…

I refer to your application for mediation.

In your application you have named the respondent as the strata committee and the applicant as the Secretary of the committee. With regards to the outcomes you are seeking, it is recommended to change the applicant to yourself (individual owner) and the respondent to the owners corporation. Fair Trading suggests this amendment as any decision by the strata committee is taken to be a decision of the owners corporation.

The abovementioned amendment will ensure that your application is jurisdictionally correct in moving forward to mediation with the potential of seeking an order by the NSW Civil and Administrative Tribunal.

Please provide a response via return email providing permission for Fair Trading to amend your application as suggested in this email.

…

11. The applicant replied to Mr Ivancic’s email on 26 May 2021 stating: “I give permission”.

12. It appears the applicant’s reply did not come to Mr Ivancic’s attention. On 27 May 2021 he reissued his letter of 26 May 2021 to the applicant by email. The applicant replied to this letter shortly afterwards stating: “I provided the attached response last night giving permission”. It may not have reached you yet hence your email”.

13. Later 27 May 2021 Mr Ivancic emailed the applicant to confirm that his email giving permission for the amendment of the parties to the dispute had been received, and to advise that his application for mediation would be processed in due course.

14. On 31 May 2021 the applicant wrote to Mr Ivancic as follows:

I understand that there may (sic) some delay before a mediation date. Notwithstanding this; I would appreciate if a copy of the application and relevant NSW Fair Trading cover letter be sent to the owners corporation as soon as possible so that they are aware of the application and have the opportunity to manage the matter in the meantime. This is especially in circumstances where if the work of concern is commenced/finished prior to any mediation the matter will become more difficult to resolve.

15. On 2 June 2021, Mr Troy Reid, Customer Service Officer, Strata and Community Living, of the agency wrote to the applicant about the proposed mediation of the dispute as follows (the mediation notification letter):

…

I refer to your application for mediation about issues related to the decision made by the owners corporation to accept a quote associated with the proposed repairs to unit [“A”] and the owner of unit [“B”] requesting that the owners corporation stop works and circulate a quote received from [a contractor] to strata committee members.

Enclosed is a copy of NSW Fair Trading’s letter to the owners corporation which is self-explanatory and for your information.

Mediation has been set for 10:00 AM on 2 July 2021 via phone link. …

16. NSW Fair Trading’s letter to the Owners Corporation is dated 2 June 2021 and is addressed to the Strata Manager for the strata scheme. It includes the following relevant statements:

…

Mediation Services has received an application for mediation lodged by [ENS], the applicant, which names the above owners corporation as the respondent.

The application referred to above is about issues related to the decision made by the owners corporation to accept a quote associated with proposed repairs to unit [A] and the owner of unit [B] requesting that the owners corporation stop works and circulate a quote received from [a contractor] to strata committee members.

…

17. The letter went on to state the role of mediation, its proposed time and date, and the option of the Owners Corporation to participate in or to decline mediation.

18. The Owners Corporation elected to participate in the mediation. That resulted in Mr Reid writing to the applicant and the Owners Corporation to confirm arrangements for the mediation by letter dated 16 June 2021. Enclosed with that letter was a brochure: “Important Information for Mediation Participation” Section 2 of that document explains the structure of the mediation, and states the following in relation to the “Final Session”:

Final session

The mediation is finalised through either the drafting of any agreement, clarification of a verbal agreement or conclusion without agreement. The mediator will assist in the finalisation of the session so that everyone is clear about their next course of action, be it via the terms of their agreement or by proceeding to a hearing with the NSW Civil and Administrative Tribunal (NCAT). The mediation is concluded.

You will be sent a closure letter identifying the issues that were discussed during the mediation and the outcome of the session. The file is now closed.

19. On 21 July 2021, Mr Philip Rees, Mediator, Strata and Community Living Specialist Services of the agency sent the applicant a letter by email confirming arrangements for the mediation session to be conducted the following day. The letter sets out the participants in the mediation in paragraph 2 as follows:

Information received to date indicates the following participants at telephone mediation:

Applicant Unit [B] lot owner: ENS …

Respondent owners corporation: [name] (Chairperson)

If there are any updates to the above participant information for you then please urgently advise today so that I can inform the other party and update our records accordingly.

20. The applicant made no response to Mr Rees’ letter.

21. On 2 July 2021, Mr Rees conducted the mediation between the applicant and the Chairperson of the Owners Corporation. Certain agreements were reached in discussion. At the end of the mediation, Mr Rees sent an email letter to the parties which attached a Settlement Agreement which incorporated those agreements. That letter (the mediation finalisation letter) stated in part:

…

I refer to the above application and the mediation session of 2 July 2021 attended by below applicant(s) and respondent(s)

Applicant: Unit [B] Lot Owner      Respondent: The Owners - SP [No]

* ENS            * [name] (committee member)

The mediation session concerned issues related to the decision made by the owners corporation to accept a quote associated with proposed repairs to unit [A], and the owner of unit [B] requesting the owners corporation stop works and circulate documents/a quote received from [a contractor] to strata committee members.

22. Attached to this letter was a document headed: “Settlement agreement to a dispute under the Strata Schemes Management Act 2015” (the Settlement Agreement). The recital at the top of this document includes the following:

THIS AGREEMENT is made on the 2^nd day of July, 2021 BETWEEN (the Applicant) ENS (Unit [B] owner) AND (the respondent) Owners Corporation SP: [No] represented by [name] (SC Member) each referred to as “a party’ and together “the parties”.

23. Later 2 July 2021, the applicant replied to Mr Rees’ email stating:

Thanks for these

To note that I’m also a strata committee member and the issues the subject of the mediation were specifically concerning other members providing documents to myself as a member. Due to this I believe my status as a committee member should be mentioned against the applicant’s (my) name for clarity.

24. Mr Rees replied to the applicant on 9 July 2021 stating:

I will speak to the respondent owners corporation in relation to your request to add your role as ‘Strata committee member’ next to your name and reference to ‘Unit [B] owner’ in the Party Section of the Agreement and the final letter.

With their agreement, those changes can be made and I will return once I have received the respondent’s advice to your request.

25. Mr Rees wrote to the Owners Corporation’s Strata Manager on 12 July 2021 advising of the amendments sought by the applicant and asking if the Owners Corporation was prepared to agree to them.

26. Also on 12 July 2021, the applicant wrote to Mr Rees about a different issue, which he states as follows:

…

Last Friday I received a copy of an NCAT application whereby a third-party claims that my Fair Trading Mediation application … is to stop the works in their home. … I note the NCAT application contains many other false and outrageous claims which has caused me significant prejudice.

To make this claim this third-party has relied on various correspondence by NSW Fair Trading which states: “The application referred to above is about issues related to the decision made the owners corporation to accept a quote associated with the proposed repairs to unit [A] and the owner of unit [B] requesting that the owners corporation stop works and circulate a quote received from [a contractor] to strata committee members “(emphasis added)

As you know the mediation application concerned issues of due care, due diligence, transparency, the complying with resolutions by the strata committee so that I could make an informed decision as the secretary of the strata committee. It was not about stopping the works.

…

Please urgently amend the correspondence of NSW Fair Trading to remove reference to my seeking to stop the works and distribute that correspondence to the (mediation) respondent and myself. [Name] has provided an email (on another matter) which may be used as an example to go with the clarification of NSW Fair Trading.

27. On 14 July 2021 Ms Rees wrote to the applicant and the Strata Manager for the Owners Corporation to amend the description of the dispute contained in his mediation finalisation letter. In the covering letter it is stated:

We refer to the application for mediation lodged by [ENS] (the applicant) on 25 May 2021 … and provide the following information.

The attached document called “Application description and outcome” was included in the application and was sent to The Owners – SP[No] along with initial letters on 2 June 2021. This document contains the outcomes sought by the applicant.

We have received a request from the applicant to clarify that the mediation was not about stopping the works.

Please see amended final correspondence with the issue description corrected.

28. The amended description contained in the mediation finalisation letter states:

The mediation session concerned issues related to the decision made by the owners corporation to accept a quote associated with proposed repairs to unit [A] and the owner of unit [B] requesting that the owners corporation circulate documents/a quote received from [a contractor] to strata committee members

This amended letter did not make any changes to the applicant’s ‘party’ description.

29. Later 14 July 2021, the Strata Manager acknowledged receipt of Mr Rees’ covering letter and the amended mediation finalisation letter stating that she would “would circulate to owners”.

30. The applicant was unhappy with the contents of Mr Rees’ covering letter. He replied to it shortly after receipt, stating:

Unfortunately, the subsequent email and letter content by Fair Trading also suggests that it is me who is seeking clarification that mediation was not about stopping the works. As it was inaccurate to advise mediation was about stopping the works, it is also inaccurate to advise mediation that the request for clarification came from me. It is Fair Trading making these inaccurate representations in my name and therefore it is for Fair Trading to advise that these inaccurate representations come from the department and not from me. This is clear in my urgent email of 12 July 2021 by my request for correspondence to be amended.

…

31. The applicant sought an amendment to Mr Rees’ covering letter and put forward an example of wording that he considered correct.

32. Later again 14 July 2021, the Strata Manager advised Mr Rees that it did not consent to an amendment to the mediation finalisation letter or the Settlement Agreement to record the applicant as a ‘Strata Committee Member’, stating:

…

The committee are not happy to allow either to be added to the paperwork for the following reasons

[ENS] is not on the strata roll as an owner

[ENS] does not appear on LRS as the title holder so on Point 1 & 2 should not be reflected as an owner on any paperwork.

By adding the word Secretary, it infers this was as a result of a resolution of the strata committee on behalf of the owners corporation which it wasn’t.

The application was a personal application and therefore should not be reflected as secretary on any paperwork

33. On 16 July 2021 Mr Rees notified the applicant by email that the Owners Corporation had refused to agree to an amendment to his ‘party’ description in the mediation finalisation letter and Settlement Agreement:

I refer to previous correspondence in this matter and to your request to add your role as a strata committee member against your name in the Settlement Agreement dated 2 July 2021 and advise the owners corporation has not agreed to this amendment.

Please see email below received from strata manager on behalf of the owners corporation in this regard.

In light of the information received from the owners corporation, it is unclear if you had authority to lodge the application for mediation on behalf of a lot owner within strata plan [No] and be a party to the mediation.

I confirm this application for mediation is closed and no further action will be taken.

34. The applicant replied to Mr Rees stating that he had made his application for mediation in his capacity as “Secretary” and “Strata Committee Member” and that it was not a personal application. He refuted the Strata Manager’s claim that he was not a Lot Owner, providing a copy of a document which he contended established that he was. He requested: “NSW Fair Trading – without further delay – comply and correct my personal information”. Mr Rees did not respond to this correspondence.

35. On 21 September 2022 the applicant wrote to the agency’s Privacy Coordinator to request an internal review under the PPIP Act of “the decision by the department to not rectify that personal information and to use and disclose that incorrect personal information”. In later communications between the agency’s Senior Coordinator – Privacy and the applicant, the agency determined the scope of the review as follows (this extract is taken from the Internal Review outcome report):

On the basis of your application for internal review, subsequent correspondence and information made available to me by the Strata Mediation team, it is my understanding that you allege that NSW Fair Trading contravened the PPIP Act by

(a) Stating that your application for Strata Mediation related to a request to stop works and subsequently stating in correspondence to the Respondent that you sought clarification that the mediation was not about stopping the works (“Allegation A”); and

(b) Failing to amend Strata Mediation File No […] to identify you as secretary of the Strata Committee (“Allegation B”).

36. The outcome of the internal review was published to the applicant on 19 November 2021. The internal reviewer determined that there was no evidence in support of the applicant’s allegation that NSW Fair Trading had breached his privacy. As a result, she recommended NSW Fair Trading take no further action in the matter.

37. In relation to Allegation A, the internal reviewer found:

Before considering an application for review, it is necessary to establish that the application relates to personal information as defined in section 4 of the PPIP Act. In that regard I note that the section 4 of the PPIP Act defines personal information as “information or an opinion (including information forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion”.

In relation to Allegation A, I have established that the information to which the application for review relates is not personal information for the purposes of the PPIP Act. Allegation A represents a business process error, rather than a breach of privacy. It involved the NSW Fair Trading Strata Mediation team interpreting the words used in your application for strata mediation using general terminology to summarise the scope of same.

The terminology “stop works” was used from the outset of the strata mediation process and upon being notified that you considered this to inaccurately reflect the scope of the strata mediation on 12 July 2021, NSW Fair Trading promptly amended relevant records.

38. In relation to Allegation B the internal reviewer found:

In relation to Allegation B, I have established that the information to which the application for review relates can be characterised as personal information for the purpose of the PPIP Act as it relates to information about you, being your position within Strata Committee.

[Allegation B was considered in relation to IPP 8, 9 and 11]

In relation to the consideration of IPPs 8 and 9 I note that while your original application for Strata Mediation named yourself as Secretary, on 26 May 2021 and additionally on 27 May 2022, you provided consent to amend the application to be on behalf of yourself as an individual owner.

Additionally, on 1 July 2021, NSW Fair Trading provided you with the opportunity to advise this agency if any updates needed to be made to the participant information prior to Stata Mediation the following day.

I note that your request for amendment of your personal information was in respect of a finalised Strata Mediation Agreement between yourself and the respondent. In conducting my enquiries, the Strata Mediation team advised that, once finalised, a Settlement Agreement can only be amended with the consent of both parties.

I have established that upon receiving your request for amendment, NSW Fair Trading took reasonable steps to obtain the Respondent’s consent in order to make appropriate amendments. As you are aware the Respondent refused to provide this consent and NSW Fair Trading is therefore not lawfully permitted to alter the settlement agreement. In that respect I consider there to be no contravention of IPP 8.

It is my view that the personal information held about you by NSW Fair Trading in relation to your position within the Strata Committee is accurate in so far as you provided your consent to amend applicant information on the application for Strata Mediation. It is also my view that NSW Fair Trading took reasonable steps to ensure your personal information was accurate prior to using the information for mediation purposes by providing you with the opportunity to update your information. I consider there was no breach of IPP 9

In relation to IPP 11, and on the basis of the information available to me, I have established that disclosure of your personal information by NSW Fair Trading to the Respondent is a disclosure directly related to the purpose for which the information was collected, and NSW Fair Trading can reasonably believe that as the Applicant to the Strata Mediation proceedings you would not object to disclosure.

I do not consider there to be an issue of unlawful disclosure and am of the view that IPP 11 has no bearing on your application.

Contentions of the parties

Applicant

39. The applicant contends, in effect, that the agency contravened IPP 8 (s 15 of the PPIP Act) by failing to correct the mediation finalisation letter and Settlement Agreement to record that he participated in the mediation in his capacity as a “Strata Committee Member”. He contends that this correction is necessary because he made his application for mediation in that capacity. He contends that the Owners Corporation (or Strata Committee) has no authority to prevent this correction being made. He complains that he unwittingly agreed to Mr Ivancic’s proposal to amend his status to that of Lot Owner in circumstances where that change was not necessary, and in which he did not realise its’ ramifications. He also complains that Mr Rees’ decision not to amend the mediation finalisation letter and Settlement Agreement was improperly influenced by the Strata Committee’s statement that he was not a Lot Owner in the strata scheme, which he says is false. He also contends that the failure of the mediation finalisation letter to refer to him as applicant in his capacity as Strata Committee Member may prevent him from applying NCAT for orders to enforce the agreements reached in the mediation, as well as for other orders.

40. The applicant also contends, in effect, that the agency contravened IPP’s 8 and 9 (ss 15 and 16 of the PPIP Act) by communicating an incorrect summary of the dispute to the Owners Corporation in its notification and mediation finalisation letters. That is, that his objective was to “stop works” planned for unit “A”. Although the agency changed the summary at his request, he complains that it did so in a way that perpetuates the original error by stating that he has “clarified” the outcome he sought. His contentions are that he never sought such an outcome, that he therefore did not generate this misunderstanding, and that he therefore did not ‘clarify’ anything. He contends it was the agency that misinterpreted and miscommunicated the intention of the mediation application and that it has the responsibility to ‘rectify’ the misinterpretation.

Agency

41. The agency denies that it has contravened any IPP with respect to the applicant’s personal information.

42. With respect to the parties to the mediation, the agency does not dispute that the mediation application form submitted by the applicant identified him as the Secretary of the strata plan. However, it contends that under delegation from the Secretary, the staff of the Strata Mediation Service are required, pursuant to s 218 of the Strata Schemes Management Act 2015 (SSM Act), to determine if a dispute is suitable for mediation. This involves the identification of the proper parties to the mediation. In this respect, it determined that the dispute, in its legal form, was a dispute between the applicant as a Lot Owner and the Owners Corporation, not the applicant as Secretary of the Strata Plan and the Strata Committee. It contends that it sought the applicant’s permission to alter the identity of the parties to the dispute in accordance with this assessment and he agreed to this in writing twice. It contends that the dispute was notified to the Owners Corporation on the basis that it was the respondent party (not the Strata Committee as the application form had stated), and that applicant was a Lot Owner (not Secretary of the Strata Committee as the application form had stated). It contends that mediation session was conducted, and the mediation outcomes negotiated, and the dispute resolved, on this basis. In these respects, the agency contends that the party identification contained in its mediation finalisation letter is accurate. Nevertheless, it contends that it would have been prepared to amend the mediation letter to record the applicant’s role as Secretary if the Owners Corporation had been prepared to agree, but since it has refused, it is unable to do so.

43. With respect to the summary of the dispute contained in the notification and mediation finalisation letters, the agency contends that this is not personal information to which the IPPs apply. In its submissions dated 11 March 2022 the agency does not explain why that is the case. However, I note that the internal reviewer reached the same conclusion and explained that this is because the agency’s allegedly incorrect summary of the outcomes sought by the applicant was a “business process error”, not personal information. In any event, the agency submits that a proper reading of the applicant’s request for this amendment in his email dated 12 July 2021 reveals that he asked for this “clarification”, which was what the agency did. It also submits that it released to the Owners Corporation the document the applicant had attached to his application for medication (“NSW Fair Trading Mediation Application 25 May 2021”), which contained all the outcomes he sought, and related discussion. It contends that it has acted reasonably in the circumstances.

Remedy sought by the applicant

44. The applicant applies for the following relief (set out at paragraphs 31, 33 and 34 of his submissions of 18 February 2022:

31.   In respect of the correct reasons for seeking mediation, the respondent is to concede or be directed by the Tribunal to concede to all parties and participants of that mediation that the assertion “to stop the works” was the sole error of the respondent and came in no way from the applicant, and that the applicant requested this to be rectified.

…

33.   The respondent is to correctly identify or be directed by the Tribunal to correctly identify the parties in the mediation agreement, in accordance with all mediation documents and in accordance with the issues discussed outlined at parts 1 to 4 of the mediation agreement.

34.   The respondent is to indemnify or be directed by the Tribunal to indemnify the applicant for claims made against the applicant as a result of the respondent making incorrect representations to third-parties in regard to his mediation application.

45. The agency contends that the Tribunal ought to take no further action on the matter.

The applicable law

46. Part 2, Division 1 of the PPIP Act prescribes Information Protection Principles in relation to ‘personal information’ that apply to public sector agencies by operation of s 20(1) of that Act. A public sector agency must not do any thing, or engage in any practice, that contravenes an information protection principle applying to the agency: s 21(1). The contravention by a public sector agency of an information protection principle that applies to the agency is conduct to which Part 5 of the PPIP Act applies: s 21(2).

47. ‘Personal information’ is defined in s 4(1) of the PPIP Act to mean, relevantly:

“personal information” means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion

48. Section 4(4) and (5) of the PPIP Act explains the circumstances in which personal information is “held” and “collected” for the purpose of that Act. They provide, relevantly:

(4)   For the purposes of this Act, personal information is “held” by a public sector agency if –

(a)   the agency is in possession or control of the information,

…

(5)   For the purposes of this Act, personal information is not “collected” by a public sector agency if the receipt of the information by the agency is unsolicited.

49. The following information protection principles are relevant in this administrative review, which are supported by the following legislative provisions of the PPIP Act:

IPP 8

15   Alteration of personal information

(1)   A public sector agency that holds personal information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the personal information –

(a)    is accurate, and

(b)   having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading.

(2)   If a public sector agency is not prepared to amend personal information in accordance with a request by the individual to whom the information relates, the agency must, if so requested by the individual concerned, take such steps as are reasonable to attach to the information, in such a manner as is capable of being read with the information, any statement provided by that individual of the amendment sought.

(3)   If personal information is amended in accordance with this section, the individual to whom the information relates is entitled, if it is reasonably practicable, to have recipients of that information notified of the amendments made by the public sector agency.

(4) This section, and any provision of a privacy code of practice that relates to the requirements set out in this section, apply to public sector agencies despite section 25 of this Act and section 21 of the State Records Act 1998

IPP 9

16   Agency must check accuracy of personal information before use

A public sector agency that holds personal information must not use the information without taking such steps as are reasonable in the circumstances to ensure, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.

50. Part 5 of the PPIP Act contains provisions for internal and external review of conduct by public sector agencies that may contravene an information protection principle. The provisions relating to internal review by agencies are found in s 53. The provisions related to external, administrative, review are found in s 55 and are as follows insofar as is relevant in this case:

55   Administrative review of conduct by Tribunal

(1)

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

(2)   On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders -

(a)   subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct,

(b)   an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice,

(c)   an order requiring the performance of an information protection principle or a privacy code of practice,

(d)   an order requiring personal information that has been disclosed to be corrected by the public sector agency,

(e)   an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant,

(f)   an order requiring the public sector agency not to disclose personal information contained in a public register,

(g)   such ancillary orders as the Tribunal thinks appropriate.

(3) Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997.

(4)   The Tribunal may make an order under subsection (2)(a) only if –

…

(b)   the Tribunal is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency.

(5)   If, in the course of an administrative review, the Tribunal is of the opinion that the chief executive officer or an employee of the public sector agency concerned has failed to exercise in good faith a function conferred or imposed on the officer or employee by or under this Act (including by or under a privacy code of practice), the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister (if any) for the public sector agency.

…

51. Section 218 of the SSM Act provides:

218   Matters that may be subject to mediation

(1)   A person may apply to the Secretary for mediation of any matter for which an order may be sought from the Tribunal under this Act.

(2)   On receipt of an application for mediation, the Secretary must, if the Secretary thinks the circumstances of the case are appropriate, arrange for mediation in accordance with the regulations

(3)   The Secretary may dismiss an application for mediation if the Secretary believes that the application is frivolous, vexatious, misconceived or lacking in substance.

Consideration

The applicant’s request that his participant status in the mediation be amended to “Strata Committee Member”

52. For IPP 8 (s 15(1) of the PPIP Act) to be engaged the following must be satisfied:

1. A public sector agency must hold personal information,

2. There must be a request by the individual to whom that information relates to amend that information.

53. There is no issue that both elements are satisfied in this case. The agency holds strata mediation records, including copies of the mediation notification and finalisation letters and the Settlement Agreement, which contain the applicant’s name and role in the mediation. His identity is apparent or can reasonably be ascertained from this information. There is no issue that the applicant requested the agency to amend his participant identification information in his email to Mr Rees dated 2 July 2021.

53. It is mandatory for an agency, if requested to do so by the individual concerned, to examine personal information held by the agency to ensure that it is accurate. The agency must also ensure, having regard to the purpose for which the personal information is to be used, that it is relevant, up to date, complete and not misleading.

54. An agency is not automatically obliged to make any amendment to personal information sought by an applicant. The agency’s obligation in response to such a request is to ensure that the personal information is accurate, relevant, up to date and not misleading, and if it not found to be such, then to amend it to make it so. In doing so, the agency will have regard to, but is not bound by, the amendment sought by the individual to whom the information relates: ALL v Sydney Local Health District [2020] NSWCATAD 174 at [78].

55. In this case there can be no doubt that the applicant’s participant description in the mediation notification and finalisation letters and in the Settlement Agreement, was “accurate”, “relevant”, “up to date” and “not misleading” for the purposes of IPP 8. Compliance with IPP 8 did not therefore require the agency to make any change to the applicant’s participant description: BMS v St Vincent’s Health Network Sydney Limited [2015] NSWCATAD 177 at [6].

56. Although the applicant had listed his role as “Secretary” of the Strata Committee and the respondent as the “Strata Committee of the Owners Corporation” in his mediation application form, during a process of assessment of his application undertaken under delegation from the Secretary under s 218 of the SSM Act, Mr Ivancic determined that the proper parties to the dispute were the applicant in his capacity as Lot Owner and the Owners Corporation. By email letter dated 26 May 2021 Mr Ivancic recommended to the applicant the amendment of the mediation application to reflect these roles seeking his “permission” to do so. By return emails dated 26 and 27 May 2021 the applicant twice gave “permission” for this amendment to be made to his application.

57. The applicant’s status as a participant in the mediation thus became that of a Lot Owner from that point and the respondent became the Owners Corporation. That fact was re-confirmed without objection or comment by the applicant in the email Mr Rees sent to the parties to the mediation on 21 July 2021. The mediation was conducted on the basis that the applicant was appearing in his capacity as Lot Owner and the respondent was the Owners Corporation. The mediation notification letter to the Owners Corporation, the mediation finalisation letter to both parties, and the Settlement Agreement all state that these were the parties to the mediation, and each are accurate, relevant, up to date and not misleading in this respect.

58. The applicant’s requested amendment would retrospectively change his participant status or description to that which applied when he made his application. Given the subsequent changes to his participant status he agreed to, retrospective amendments to the mediation notification and finalisation letters and the Settlement Agreement now would render them inaccurate, out of date and misleading contrary to the agency’s obligations with respect to the applicant’s personal information: IPP 9.

59. The agency did approach the respondent Owners Corporation to ascertain if it would consent to the amendment sought by the applicant. However, when it did so, it was not viewing the matter through the lens of IPP 8. It was indicating a preparedness to alter a mediation agreement by consent of the parties to mediation. It is important to keep this conceptual distinction in mind. However, the respondent refused to agree to the amendment and so Mr Rees could take the matter no further down that path.

60. The applicant is correct in his submission that the Owners Corporation (or Strata Committee, or Strata Manager) can’t veto an amendment being made to his personal information. But that is not what occurred. The Owners Corporation vetoed Mr Rees’ attempt to vary the mediation outcome documents by consent, by refusing its’ consent. That says nothing about whether the applicant’s personal information contained in those documents (being the status or capacity in which he participated in the mediation) was accurate, relevant, up to date, and not misleading viewed through the lens of IPP 8.

61. The applicant also contends the claims made by the Strata Manager in her email to Mr Rees of 14 July 2021 were false and that this resulted in Mr Rees improperly refusing to amend his personal information. It is clear from Mr Rees’ email to the applicant dated 16 July 2021 that he did take a dim view of the information he had received from the Strata Manager which was to the effect that he was not a Lot Owner. However, it’s also clear that Mr Rees’ subsequent actions were not motivated by that information. His only action was to close the mediation file indicating that no further action would be taken because no amendment to the applicant’s participant identity could be agreed in that context. He was not viewing the matter through the lens of IPP 8. If he had been, he would have considered if the mediation notification and finalisation letters and the Settlement Agreement needed to be amended to remove the applicant’s party description as “Lot Owner”. The allegation made by the Strata Manger therefore had no effect on Mr Rees decision either for the purposes of the mediation or with respect to IPP 8.

62. The applicant now contends that he unwittingly agreed to the changes to his party identification recommended by Mr Ivancic and that such a change was not necessary. He expresses concern that it may limit the remedies he is entitled to under the SSM Act, although how it would do so is not explained.

63. It does not fall to this Tribunal, exercising functions under the ADR and PPIP Acts to determine if Mr Ivancic’ actions pursuant to the SSM Act were correct. The fact is, for present purposes, that Mr Ivancic recommended to the applicant that his application be amended so that his applicant description would be that of Lot Owner, and that amendment was agreed to (twice) by the applicant. That was confirmed by Mr Rees without objection from the applicant on 21 July 2021. Viewed through the lens of IPP 8, the mediation notification and finalisation letters and the Settlement Agreement accurately reflected that amendment and there is no basis upon which the agency is required to amend them.

64. For completeness, I note that the alternative contained in s 15(2) of the PPIP Act does not arise in this case. The applicant has not requested the agency to attach any statement provided by him about the amendment sought to the records of the mediation.

The description of the dispute

66. The term “personal information” in s 4(1) of the PPIP Act is to be given a broad meaning: WL v Randwick City Council [2007] NSWADTAP 58 at [20]. It is therefore difficult to grasp the basis upon which the agency contends that the description of the dispute it included in the mediation notification and finalisation letters is not personal information. That description was generated by the agency from the document the applicant attached to his application for mediation. That document contains information and opinions about the applicant which identify him or allow his identity to reasonably be ascertained. It is clearly personal information. The fact that the information disclosed by the agency is a summary of that information does not result in it ceasing to become personal information. IPPs 8 and 9 therefore clearly apply to it.

67. This required the agency, when asked by the applicant to amend this information, to determine in accordance with IPP’s 8 and 9 if its summary of the dispute was accurate, relevant, up to date, and not misleading.

68. Mr Rees did not approach this request through the lens of the IPPs.

69. He redrafted the mediation finalisation letter to give effect to the amendment sought by the applicant apparently in an exercise of discretion pursuant to s 218 of the SSM Act. The applicant does not cavil with the amended description Mr Rees incorporated into the letter.

70. The issue that is now in contention is whether it was correct, viewed through the lenses of IPPs 8 and 9, for Mr Rees to have stated that the amendment was the result of the applicant “clarifying” the outcomes he sought. This requires consideration of whether the original summary of the dispute was accurate, relevant, up to date, and not misleading.

71. When he made his application for mediation to the agency the applicant included the word processed document (“NSW Fair Trading Mediation Application”) which, among other things, stated that he sought 4 outcomes from the mediation. These are set out at paragraph 9 above. Outcome 4 was “that no work commence or be paid … until the quotes resolved to be obtained …are obtained and assessed”. On 31 May 2021 the applicant wrote to Mr Ivancic (paragraph 14 above) to request that the agency notify the Owners Corporation of his mediation application “as soon as possible so that they are aware of the application” stating “[t]his is especially in circumstances where if the work of concern is commenced/finished prior to any mediation the matter will become more difficult to resolve”.

72. The agency issued mediation notification letters to the applicant and the Owners Corporation on 2 June 2021 which contained the now impugned description of the dispute. The agency provided the applicant with a copy of its notification letter to the Owners Corporation. The applicant did not complain about the description at that time. Nor did he complain about it at any later point before the finalisation of the mediation. It was only raised as an issue on 12 July 2021, ten days after the mediation, when the applicant became a respondent to proceedings instituted in NCAT by the Lot Owner of unit “A”. It appears that the Lot Owner of unit “A” had obtained the mediation and/or finalisation letters though the records of the strata scheme and that the description of the dispute had some significance for her proceedings.

73. Having regard to the above I cannot see how it could be concluded that the agency’s original summary of the dispute was inaccurate or misleading. It plainly was the applicant’s objective that the proposed work to unit A “not commence” until specified processes had been complied with. The use of the word “stop works” was a common-sense rendering of that outcome in the dispute summary. That common-sense understanding of outcome 4 is reinforced by the applicant’s email to Mr Ivancic on 31 May 2021 which is also clearly directed at preventing the commencement of the work before the mediation was conducted.

74. I am thus not satisfied that the original dispute description developed by the agency contained any inaccurate or misleading personal information of the applicant. It was an accurate summary of what the applicant sought to achieve from his mediation application at the time. Mr Rees amendment of the description of the dispute was therefore not required for compliance with IPPs 8 and 9.

75. The amended dispute description Mr Rees issued was in response to the applicant’s request that the dispute be retrospectively re-characterised 10 days after the mediation had been completed. Why Mr Rees acceded to this request (other than because the applicant requested it) is unexplained. In doing so, he stated that the applicant had “clarified” the outcomes he had sought. The use of that word was consistent with the request made by the applicant in his email dated 12 July 2021. To any extent that the issue is reached, that word is not inaccurate or misleading.

76. Mr Rees had no obligation on behalf of the agency to “rectify” the original description of the dispute because that description was not inaccurate or misleading in any way. The revised mediation finalisation letter correctly identified the applicant as the instigator of the amended description.

Order

77. For the foregoing reasons:

1. The Tribunal determines to take no action on the matter.

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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

Decision last updated: 14 November 2022