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

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).
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

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

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…

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: [2022] NSWCATAD 364
Decision Date: 14 November 2022

CaseChat Overview and Summary

The case before the Tribunal involved ENS, a complainant, and the Commissioner for Fair Trading, the respondent, under the Privacy and Personal Information Protection Act 1998. The dispute centred on the conduct of the Commissioner during an investigation into a potential breach of privacy. ENS argued that the Commissioner had acted in an unreasonable and procedurally unfair manner, resulting in distress and potential harm to ENS. The Tribunal was tasked with reviewing the conduct of the Commissioner to determine whether it was lawful, reasonable, and procedurally fair.

The primary legal issues that the Tribunal needed to address were whether the Commissioner's conduct during the investigation met the statutory requirements for lawful, reasonable, and procedurally fair conduct as outlined in the Privacy and Personal Information Protection Act 1998. Specifically, the Tribunal examined whether the Commissioner adhered to the principles of natural justice and procedural fairness, and whether the actions taken by the Commissioner were proportionate and reasonable in the context of the investigation. The Tribunal also considered whether ENS had suffered any harm or distress as a result of the Commissioner's conduct.

In reaching its decision, the Tribunal thoroughly reviewed the evidence and submissions presented by both parties. The Tribunal found that while there were some procedural shortcomings in the Commissioner's handling of the investigation, these did not amount to a breach of the statutory requirements. The Tribunal concluded that the overall conduct of the Commissioner was reasonable and procedurally fair, and that any distress experienced by ENS was not directly attributable to the Commissioner's actions. As a result, the Tribunal determined not to take any action on the matter, finding that the Commissioner's conduct did not warrant further intervention.

Orders

Orders of the court

The Tribunal determines 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:	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”.