ENS v Commissioner for Fair Trading

[2022] NSWCATAD 356

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

ENS v Commissioner for Fair Trading [2022] NSWCATAD 356

Hearing dates:

On the papers

Date of orders:

9 November 2022

Decision date:

09 November 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

P French, Senior Member

Decision:

1. 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

Government Information (Public Access) Act 2009 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW) – ss 4, 9, 10, 13, 16, 18, 20, 21, 25, 55

Strata Schemes Management Act 2015(NSW) – s 218

Strata Schemes Management Regulation 2016 (NSW) – rr 58, 59

Cases Cited:

ENS v Commissioner for Fair Trading [2022] NSWCATAD 22

CWS v NSW Department of Education [2017] NSWCATAD 287

Department of Education and Training v GA (No.3) [2004] NSWADTAP 34

Texts Cited:

Nil

Category:

Principal judgment

Parties:

ENS (Applicant)
Commissioner for Fair Trading (Respondent)

Representation:

Solicitors:
Applicant (Self-represented)
Department of Customer Service (Respondent)

File Number(s):

2021/00005121

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.
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 (IPPs) contained in Part 2, Division 1 of the PPIP Act. This application was made to the Tribunal on 7 January 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 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 an order ought to made under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Other than an order made by Senior Member Ransome in disposition an interlocutory application in on 20 January 2022 (ENS v Commissioner for Fair Trading [2022] NSWCATAD 22) which is limited to those reasons, the Tribunal has not made a pseudonym order. The application has been before the Tribunal for 15 months up to the close of submissions in April 2022 and 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:

1. When hearings are required

2. A hearing is required for proceedings in the Tribunal except –

…

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

…

1. 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.

2. 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.

1. 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.

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

   5. On 28 April 2022 the Tribunal, differently constituted, dispensed with a hearing of the application. It did so in a context where the application had been listed for hearing on 29 April 2022, and the applicant sought an adjournment of that hearing citing recent ill-health. In his adjournment application the applicant proposed that the matter be dealt with on the papers. In its response to the adjournment application the agency agreed that the matter could be dealt with on the papers.

   6. 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. The parties have both had the opportunity to make a submission in relation to this issue and I have taken their submissions into account.

Evidence and submissions

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

Applicant

1. Administrative Review Application Form filed on 7 January 2022,

2. Submissions filed 19 March 2021,

3. Submissions filed 25 June 2021,

4. Submissions filed 27 October 2021,

5. Submissions filed on 22 March 2022 with its Annexures,

Agency

1. Section 58 documents filed on 22 February 2021,

2. Chronology and supplementary documents filed on 15 March 2021,

3. A supplementary document filed on 15 June 2021 (being a copy of an email from “Strata Mediation” to an applicant for mediation (Ms N) dated 16 July 2020,

4. Submissions filed on 11 April 2022.

Material facts

8. The applicant is the owner of a Lot in a strata scheme.

9. In or about June 2020 another Lot Owner in the strata scheme (who I will refer to as “Ms N”) lodged an application with the Commissioner for Fair Trading for mediation of a dispute with the scheme’s Strata Manager and/or Owners Corporation in accordance with the provisions of Division 2 of Part 12 of the Strata Schemes Management Act 2015 (NSW). In one section of the application form Ms N states that there are 9 other Lot Owners who support her application, but she has not been able to contact all Lot Owners before lodging the application.

10. The agency assigned this application to Mr King, Mediator, Strata and Community Living. In other words, Mr King was appointed as the delegate of the Secretary to exercise the Secretary’s powers and functions in relation to the mediation of the strata dispute.

11. Mr King initially proposed a mediation conference on Monday 20 July 2020 at 10am, but after consulting the parties, it was later set down on 28 July 2020. Mr King later confirmed this in writing to Ms N and the Strata Manager.

12. Ms N’s mediation application came to the attention of the applicant apparently as a record of the strata scheme to which he had access as Lot Owner. The fact that the mediation was proposed to occur on 20 July 2020 also came to his attention, apparently by the same means. However, it did not come to his attention that the mediation was later scheduled for 28 July 2020.

13. On 14 July 2020 the applicant sent an email to Mr King which stated as follows:

Subject: Mediation ...

Dear Mr King

I am an owner of an apartment in this strata plan [name] – and refer to the above referenced application

The second last paragraph of the application advises that not all owners could be contacted. My apologies however this contact request seems to have been missed. Please urgently advise whether I and any other owners may join this application, and if so how?

14. The applicant’s email did not provide a telephone number at which he could be contacted.

15. Mr King responded to the applicant’s email on 15 July 2022 asking that he telephone him to discuss his request. In the evening of that day, the applicant replied stating that he would try to call but this may be difficult due to work commitments. He requested “in the meantime please let me know by email”.

16. On 16 July 2020 Mr King sent an email to Ms N (only) which states: “I have received a request from an owner [ENS] to be part of the mediation, is that acceptable to you?”. Ms N telephoned Mr King in response to his email. Although not entirely clear, it appears that she wanted Mr King to obtain more information from the applicant as to why he wanted to participate, which Mr King undertook to provide after he had spoken to ENS. However, Ms N later refused to consent to ENS participating in the mediation (Tab 3, pages 22 and 23 of the applicant’s bundle filed on 24 March 2022).

17. The applicant contends in his submissions at various points that Mr King notified 9 people (being the 9 people Ms N had stated in her application as supporters of her application) of his request to participate in the mediation. The agency denies this and there is no evidence of any kind in the material before that supports the applicant’s contention.

18. The applicant contends he tried to reach Mr King by telephone on 16 and Friday 17 July 2020 but was unsuccessful. In the early afternoon of 17 July 2020 he emailed Mr King to advise that he had not been able to reach him by telephone and requested his “urgent[] advise in regard to [his] query as mediation is to be held in (sic) Monday”. Shortly afterward Mr King responded stating as follows:

Dear [name]

The mediation process is confidential so I need to speak with (sic, you?) and then contact the parties to establish whether they agree to you being involved. Provide me with your telephone number and I will call you after 3:30PM.

19. Later on the afternoon of 17 July 2022 the applicant replied to Mr King’ stating as follows:

Dear Mr King:

It’s unclear why hurdles are being put up by NSW Fair Trading in regard to a very simple question.

On Tuesday, 14 July 2020 3:14PM I sent an email writing: “Please urgently advise whether I and any other owners may join this application, and if so how?” Rather than provide that basic information you sent me (sic) and asking me to contact you. I have left 2 messages to no avail. It is only today and following yet another attempt by to gain a response to my original query that you now advise you need to contact the other parties. That is contrary to what NSW Fair Trading advised when I called earlier which was that any owner can add their name to the application. We are Friday afternoon, tomorrow is the weekend, and the mediation is scheduled for 10am Monday. There is very little time left to confirm what is correct and in any case for me to participate.

Separately, you claim the mediation process is confidential yet the mediation application is freely accessible from the records of the owners corporation.

…

20. The applicant did not provide Mr King with his telephone number.

21. I note that the applicant’s reference in this email to what he had been told by NSW Fair Trading relates to general advice he received from the Department’s contact centre which he contends was to the effect that any lot owner could participate in a mediation.

22. Mr King replied to the applicant’s email later 17 July 2020, advising that the mediation was not proceeding on Monday 20 July 2020 and that he would be available to speak with him on Monday.

23. On or shortly after 20 July 2020 the applicant lodged complaints with the agency and other bodies about information received from the agency’s contact centre and Mr King in relation to the mediation. It is unnecessary to traverse these complaints and their progress in any detail for the purposes of these proceedings.

24. In a signed statement made in response to one of the applicant’s complaints, Mr King states the following:

In summary, I believed contacting [ENS] by email was an unsatisfactory form of communication when dealing with the issues he raised and the questions he had asked. It is my opinion that had I been able to speak with him this matter would have been resolved. If there were missed calls he did (sic, not) leave messages and contact details for me to contact him. It should be noted that ENS was not a party to the application for mediation and I had no reason to contact other than to answer his questions which were delivered by email.

25. On 16 September 2020 in an email addressed to a Customer Service Officer of the agency, Ms T Rance, who was dealing with his complaint to the NSW Ombudsman, which had been referred back to the agency to deal with, the applicant asked whether she was able to confirm if Mr King “communicated to Ms N in anyway [his] interest in possibly joining the mediation application ...”

26. On 17 September 2020 Ms Rance replied to the applicant stating:

…

Yes there is email evidence on the file … that your request to join the mediation was communicated to [Ms N].

Other than that piece of information I am unable to disclose any further information on the file as it relates to parties other than yourself.

Fair Trading/the mediator did not determine whether you could join the mediation or not – it is up to the parties to agree. This communication was approx. 10 days prior to the actual date of the mediation and is the standard way of communicating such a request.

27. The applicant replied to Ms Rance later 17 September 2020 stating:

…

It is incorrect that I requested to join the mediation. The request was whether I (and other owners) could join the application and if so how. In the circumstances please provide me with a copy of the request sent to the applicants, and also confirm whether my name was added as an applicant?

28. On 18 September 2020 Ms Rance replied:

…

Thank you for your response. I have noted your comment whether you asked to join the mediation or only required information concerning the process.

The request sent to the applicant does not form part of the records of SP [No]. Release of this document would be subject to the provisions of the Government Information (Public Access) Act 2009 (GIPA Act). Further, information regarding access to information held by Fair Trading is available on the Fair Trading website via the following link [link provided]

Prior to making a formal application you may be able to make an informal request for the information. Informal requests for further information may be forwarded to [email address].

Please note that any request for the release of information will require that you provide proof of identity and as you are requesting information that relates to another person their consent to the release may be sought. The BRD GIPA team will be able to answer any specific questions that you have regarding this process.

…

29. The applicant took umbrage at what he interpreted as Ms Rance obstructing the release of this information to him. On 19 September 2020 he sent her the following email:

The department of NSW Fair Trading had absolutely no authority to make such representations in my name. The consequences are unknown and may well be prejudicial not only to me but to multiple other parties

…

The issue needs to be dealt with immediately. Creating hurdles prolonging a proper investigation and preventing prompt resolution causes doubt about the cooperation of the department

30. On 21 September 2020 Ms Vance replied to the applicant to explain that the process she had set out for obtaining a copy of the information was required by law.

31. On 22 September 2020 the applicant wrote to the agency’s Privacy Coordinator to request a review, stating, relevantly:

…

This is a request for a review of a decision of Ms Rance in regard to the access, use, disclosure and correction of my personal information under the [PPIP Act]

This is also a request for a review of the conduct of concerned staff in regard to the access, use, disclosure, and rectification of my personal information.

…

32. The internal review was carried out by the agency’s Manager, Governance. The outcome was published to the applicant by letter dated 21 November 2021. The internal reviewer made the following findings:

1. Review Outcome

…

In relation to your request to have a review of the decision of Ms Rance in regard to the access, use, disclosure and correction of your personal information …

After reviewing the copy of communications between yourself and Ms Rance, I have concluded that the conduct to which you were referring was that of Mr King and not Ms Rance …

You have not provided any particulars of Ms Rance’s conduct and I have not discovered anything else about Ms Rance’s conduct that relates to the access, use, disclosure or correction of your personal information which warrants further investigation.

As such I have concluded that Ms Rance complied with her obligations under the PPIP Act.

…

In relation to the actions of Mr King, I have identified the following privacy principles relevant to your request for review.

IPP 3 (PPIPA s 10) – Collection: Open

…

I consider s 10 (PPIP Act) to be relevant to this privacy internal review, because it was unclear, as evidenced by the emails between yourself and Mr King, as to the process for owners to join a mediation, and any related collection, use or disclosure of your personal information.

I note, however, that Mr King did make a reasonable attempt to inform you of the intended recipients of the information in his email communication on 17 July 2022 which was as soon as practicable after the collection.

I have concluded that Mr King complied with his obligations under s 10 of the PPIP Act.

IPP 11 (PPIPA s 18) – Disclosure: Restricted

…

I consider s 18 (PPIP Act) to be relevant to this privacy internal review, because your information was disclosed to a third party – a party to the mediation application.

I note that in your original correspondence with Mr King you requested “urgent advise (sic)” [in original]

Mr King has advised in his statement in response to your complaint to the NSW Ombudsman that following receipt of your email, he determined that in order to answer your enquiry properly and succinctly, it was best for you and him to speak via telephone. He stated that this would enable a ‘proper explanation’.

On 15 July 2020 you responded to Mr King’s request by requesting that he contact you via email.

On 17 July 2020 you provided email correspondence to Mr King which noted the urgency of the situation, including that there was “little time left to confirm what is correct and in any case for me to participate.”

As noted above, I have provided you with an opportunity to provide further information about the purpose of your enquiry with Mr King and to provide any further information to support an understanding of the type of enquiry you have made. I note that you have chosen not to provide any further information, and in the absence of any further clarifying information, I believe Mr King acted in accordance with paragraph 18(1)(a) and disclosed your information to one of the parties consistent with his understanding of the Strata Schemes Management Act 2015. I believe Mr King had no reason – based on your original email contact, to believe that you would object to the disclosure as it was for a related purpose.

Further, an agency is exempt from compliance with s 18 if non-compliance is reasonably contemplated under an Act or any other law. Part 12, Division 2 of the Strata Schemes Management Act 2015 and Part 9 of the Strata Schemes Regulation 2016 provide for alternate dispute resolution.

Specifically, s 218 of that Act expressly provides that the Secretary must, if the Secretary thinks the circumstances of the case are appropriate, arrange for mediation in accordance with the regulations. That legislation reasonably contemplates that the mediator be able to contact parties to a mediation in relation to the possibility of joining another party to the mediation, as occurred here.

1. Conclusion and recommendation

This internal review considered whether NSW Fair Trading failed to protect the privacy of your personal information.

On the basis of the aforementioned review outcomes, I conclude that NSW Fair Trading complied with their obligations under the privacy legislation. …

33. This application has been before the Tribunal for several Case Conference prior to this final hearing.

34. In conclusion of a Case Conference conducted on 7 June 2021 the Tribunal directed as follows:

1. By 16 June 2021, the Commissioner for Fair Trading is to give the Tribunal and [ENS] a copy of the following documents:

(a)   a copy of the email Mr King sent to [Ms N] on or around 17 June (sic. July) 2020 in which he said ENS requested to join the mediation of the … Strata Dispute; and

(a)   a copy (if any) of any further emails Mr King sent to another person in which he said ENS requested to join the mediation of the … Strata Dispute.

35. The agency complied with this order by supplying the email advised in paragraph (a) and advising that there were no further emails falling within the scope of paragraph (b).

36. In conclusion of a Case Conference held on 12 July 2021 the Tribunal directed as follows:

1. By close of business on 12 July 2021, the Respondent is to forward to [Ms N] an email in the following terms as agreed between the parties”

Dear [Ms N],

I refer to the attached email I sent to you on the 16 July 2020 in respect to the mediation at [Strata Plan No.]. The email stated that “I received a request from an owner, ENS to be part of the mediation, is that acceptable to you?

I wish to correct the contents of that email by advising that [ENS] did not request to join the mediation. I recommend that [ENS’s] details should not be used in any subsequent mediation action as a purported applicant or supporter of the mediation application or its contents or any subsequent legal action without express written authority of [ENS]

37. The agency complied with that order.

38. Both orders give effect to agreements reached between the parties at the case conference to settle the dispute. They are not determinations of the Tribunal made following a contested hearing of the subject matter of the dispute that gives rise to these orders.

Contentions of the parties

Applicant

39. The applicant contends that Mr King’s email to Ms N dated 16 July 2020 involved the release of his personal information, being his name in association with a representation that he sought to be involved in the mediation, which was a contravention of the Information Protection Principles. He contends that IPPs 2, 3, 6, 7, 8, 9 and 11 are relevant to his case, but he does not particularise the specific contravention of those Principles by the agency he alleges.

40. In his submission dated 19 March 2021 in response to Tribunal directions made on 22 February 2021 the applicant summarises the case he is pursuing before the Tribunal as follows:

1. The Application concerns the Respondent:

a.   having disclosed the Applicant’s personal information without the Applicant’s knowledge or permission to unknown third parties,

b.   Making incorrect representations in the Applicant’s name to those unknown third-parties,

c.   having frustrated and prevented the Applicant from accessing that personal information once the issue was discovered,

d.   not correcting the applicant’s information,

e.   not correcting the personal information of the Applicant as issued by the Respondent to those unknown third parties.

1. The applicant is seeking:

a.   access to all records held by the Respondent in regard to the above unauthorised disclosures and incorrect representations made by the respondent.

b.   The correction of the Applicant’s personal information held by the Respondent,

c.   The Respondent provide written advice to all parties connected to the mediation application that the Applicant did not request to join the mediation application and that as a result the applicant’s details must not be used in any subsequent action by those third parties as a purported applicant or supporter of the mediation application or its contents or any subsequent legal action without the express written authority of the Applicant

41. The applicant also refers in this submission to the remedies set out in s 55(2) and 55(5) of the PPIP Act, but apart from drawing the Tribunal’s attention to these provisions, he does not contend for any specific order pursuant to those sections.

42. It appears to be accepted by the applicant that the orders made in the Case Conferences on 7 June 2021 and 12 July 2021 have already provided the remedies he sought in paragraph 12 of his submissions dated 12 February 2021. It appears that his intention in pursuing his application to final hearing is to obtain vindication of his belief that the outcome of the agency’s internal review was incorrect.      

Agency

43. In short summary, the agency contends that it has not dealt with the applicant’s personal information in contravention of any Information Protection Principle. It contends that the disclosure of the applicant’s name to Ms N in connection with his request to join the mediation is a disclosure of the applicant’s personal information that is permitted by s 18(1)(a) and one that is also exempt from the IIPs by operation of s 25 of the PPIP Act. It contends that the Case Conference agreements it reached with the applicant to resolve the dispute, and which are reflected in the orders made by the Tribunal on 7 and 12 July 2021, do not constitute admissions by it to any contravention of an IPP. It contends that the Tribunal ought to take no action on the matter.

The applicable law

44. 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).

45. ‘Personal information’ is defined in s 4(1) of the 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

46. 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:

1. 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,

…

1. 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.

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

IPP 2

1. Collection of personal information directly from individual

2. A public sector agency must, in collecting personal information, collect the information directly from the individual to whom the information relates unless

(a)    the individual has authorised collection of the information from someone else.

…

IPP 3

1. Requirements when collecting personal information

If a public sector agency collects personal information from an individual the agency must take such steps as are reasonable in the circumstances to ensure that, before the information is collected or as soon as practicable after collection, the individual to whom the information relates in made aware of the following –

(a)   the fact that the information is being collected,

(b)   the purposes for which the information is being collected,

(c)   the intended recipients of the information,

(d)   whether the supply of the information by the individual is required by law or is voluntary, and any consequences for the individual if the information (or any part of it) is not provided,

(e)   the existence of any right of access to, and correct of, the information,

(f)   the name and address of the agency that is collecting the information and the agency that is to hold the information.

IPP 6

1. Information about personal information held by agencies

A public sector agency that holds personal information must take such steps as are, in the circumstances, reasonable to enable any person to ascertain –

(a)   whether the agency holds personal information, and

(b)   whether the agency holds personal information relating to that person, and

(c)   if the agency holds personal information relating to that person –

1. the nature of that information, and

2. the main purposes for which the information is used, and

3. that person’s entitlement to gain access to the information.

IPP 7

1. Access to personal information held by agencies

A public sector agency that holds personal information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information.

IPP 8

1. Alteration of personal information

2. 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.

1. 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.

2. 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.

3. 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

1. 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.

IPP 11

1. Limits on disclosure of personal information

2. A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless –

(a)   the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or

(b)   the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or

(c)   the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

48. Division 3 of Part 2 contains specific exemptions to the obligations imposed by the information protection principles. This includes, in s 25, circumstances where non-compliance with a Principle is lawfully authorised:

1. Exemptions where non-compliance is lawfully authorised or required

2. A public sector agency is not required to comply with s 9, 10, 13, 14, 15, 17, 18, or 19 if –

(a)   the agency is lawfully authorised or required not to comply with the principle concerned, or

(b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated under an Act or any other law (including the State Records Act 1998).

49. 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

1. 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.

1. 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.

2. 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.

1. 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.

…

50. Part 12, Division 2 of the Strata Schemes Management Act 2015 (NSW) (SSM Act) contains provisions for alternative dispute resolution of disputes in a Strata Scheme by the Secretary of NSW Fair Trading. In this respect, s 218 of the Division provides:

1. Matters that may be subject to mediation

2. 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.

3. 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.

4. The Secretary may dismiss an application for mediation if the Secretary believes that the application is frivolous, vexations, misconceived or lacking in substance.

   51. Part 9 – Alternative Dispute Resolution of the Strata Schemes Management Regulation 2016 (NSW) (SSM Regulation) applies to a mediation conducted under s 218 of the Act: r 57. Regulation 58 provides as follows:

5. Directions of Secretary

Subject to this Act and this Regulation, the Secretary may give written directions for regulating and prescribing the practice and procedure to be followed in connection with a mediation session, including the preparation and service of documents.

52. Regulation 59 of the SSM Regulation deals with attendance and representation in mediation sessions. It provides:

1. Attendance and representation

2. A mediation session must be attended by each party or a representative of the party if all other parties consent to the representation.

3. Other persons may attend a mediation session with leave of the mediator.

Consideration

53. The conduct that is the subject of this administrative review is that which was the subject of the internal review: s 55(1) of the PPIP Act; Department of Education and Training v GA (No.3) [2004] NSWADTAP 34 at [7]; CWS v NSW Department of Education [2017] NSWCATAD 287 at [14]. The internal review considered, relevantly, if there had been a contravention of an IPP by Mr King and Ms Rance in their actions concerning the applicant’s personal information contained in the email he sent to Mr King on 16 July 2020. The personal information was the applicant’s name, his status as a Lot Owner within a specified strata scheme, and his request to be “urgently advise[d] if I and other owners may join this application, and if so how?”

54. As a first step, it is necessary to determine which information protection principles were engaged by Mr King’s and Ms Vance’s conduct in relation to the applicant’s personal information.

55. The applicant has submitted that IPP 2 (s 9 of the PPIP Act) is relevant to Mr King and Ms Vance’s conduct, but he has not explained how he contends it was contravened. IPP 2 applies to a public sector agency’s “collection” of personal information.

56. The applicant’s email to Mr King dated 14 July 2020 was not solicited by the agency. It was therefore not “collected” by the agency for the purposes of the PPIP Act: s 4(5). Mr King’s first email to the applicant on 17 July 2020 requested the applicant to provide his telephone number so he could contact him. Mr King also stated that he wished to speak with the applicant so that he could better understand his request of 14 July 2020. This was an attempt at collection of personal information from the applicant directly. It therefore could not contravene IPP 2, and in any event, the applicant did not provide Mr King with the requested information, so it was not “collected” for the purposes of PPIP Act.

57. The applicant’s emails to Ms Vance contain personal information, being his name and opinion about the meaning of his original email, but this information was also not solicited from the applicant by the agency, and it consequently was not collected by it for the purposes of IPP 9. In her email dated 18 September 2020 Ms Vance advised the applicant that he must show proof of identity if he wished to proceed with an application to obtain access to Mr King’s email to Ms N. But she referred the applicant to another section of the agency that dealt with such requests. She did not attempt to collect this information herself.

58. I am therefore satisfied that there has been no contravention of IPP 2 in the circumstances of this case.

59. The applicant submits that IPP 3 (s 10 of the PPIP Act) is relevant to Mr King’s conduct. The agency also identified IPP 3 as relevant in its internal review. However, IPP 3 does not apply to the applicant’s email of 14 July 2020. IPP 3 imposes obligations on public sector agencies when they are engaged in the “collection” of personal information. Receipt by Mr King of the applicant’s email on 14 July 2020 did not amount to a “collection” of that information by the agency for the purposes of the PPIP Act, because, as I have already stated, the email was unsolicited: s 4(5) of the PPIP Act.

53. Mr King’s attempt to obtain personal information from the applicant following receipt of the applicant’s email of 14 July 2020, being his telephone number and information about his request to participate in the mediation, would have (or in the second respect, may have) constituted “collection” for the purposes of the PPIP Act because it was information solicited by Mr King on behalf of the agency. But there was no contravention of IPP 3 in that attempted collection having regard to the requirements of 10 of the PPIP Act. The applicant clearly knew Mr King was attempting to collect this information. He also knew the purpose for which Mr King sought to collect it, which was to better understand his request to be involved in the mediation. On 17 July 2020 Mr King informed the applicant by email of the intended recipients of the information he was seeking to collect, being the parties to the mediation. That was before the information was collected because it never was collected. The applicant must also be taken to have known that it would be the agency that would hold the information if it were provided because Mr King was carrying out a function of the agency. I am also satisfied that the applicant knew the provision of the information was voluntary because he not to provide it. As no information was ultimately collected, no occasion arose for Mr King to advise the applicant how he could obtain access to that information or correct it.

54. I am thus not satisfied that there was any contravention of IPP 3 by Mr King in his attempt to obtain the applicant’s telephone number and further information about his request to be involved in the mediation.

55. For the reasons I have already stated Ms Vance did not collect any personal information from the applicant. IPP 3 does not apply in relation to her interactions with the applicant.

56. The applicant contends that IPP 6 is relevant to his complaint. Although he does not say so explicitly, I assume he considers it relevant to Ms Rance’s conduct. In this respect, on 16 September 2020, the applicant asked Ms Rance if she was able to confirm that Mr King “communicated to Ms N in anyway [his] interest in possibly joining the mediation application ...”. Ms Rance replied to that email on 17 September 2020 confirming the existence of an email on file which indicated that the applicant’s request to join the mediation had been communicated to Ms N. Ms Rance then described the nature and purpose of the email.

57. In reply to Ms Rance’s email, the applicant asked to be provided with a copy of that document. On 18 September 2020 Ms Vance responded to this request advising that she was not able to provide the document because it did not form part of the records of the strata plan. If it had, she would have been able to release it. However, as it did not, and it contained personal information pertaining to another person, a request for access to it would need to be processed in accordance with the provisions of the Government Information (Public Access) Act 2009 (NSW). She provided a link to the relevant section of the agency’s website for the procedure to be followed.

58. In these circumstances there is no reasonable basis upon which it could be concluded that Ms Vance failed to comply with the requirements of IPP 7. She promptly confirmed the document was held, described its nature, and explained the purpose for which the applicant’s personal information was used. She also explained his entitlement to gain access to it, and the process to be followed to do so, providing a link to the relevant section of the agency’s website.

59. The applicant contends that IPP 7 is relevant to complaint, presumably because of what he interpreted as Ms Vance’s ‘obstruction’ of his access to a copy of Mr King’s email to Ms N. However, as I have set out above, Ms Rance did not obstruct the applicant’s access to the document. She merely, and helpfully, explained the process by which the applicant could obtain access to it and referred him to the section of the agency’s website where he could initiate a request for access. There is no reasonable basis upon which it could be concluded that Ms Vance’s conduct contravened IPP 7.

60. IPP 8 (s 15 of the PPIP Act) provides that a public sector agency that holds personal information must make appropriate amendments to that information if it is requested to do so by the individual to whom the information relates. Prior to the institution of these proceedings, the applicant had not made any request to the agency for an amendment to any of his personal information. That is explained in part by his refusal or failure to follow the steps Ms Vance had indicated were necessary to obtain access to the email from Mr King to Ms N of 16 July 2020. The contents of that email have subsequently been amended by the consent order made in these proceedings on 12 July 2021.

61. As set out above, in conducting this administrative review, the Tribunal is limited to the conduct that was the subject of the internal review. As the applicant had made no request for the amendment of his personal information before the internal review was conducted, IPP 8 is not engaged by this review.

62. IPP 9 (s 16 of the PPIP Act) requires a public sector agency not to use personal information it holds without taking such steps as are reasonable in the circumstances (emphasis added) 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. The applicant contends, in effect, that Mr King contravened this principle by failing to understand the nature of the request contained in his email dated 14 July 2020 and on 16 July 2020 communicating an incorrect understanding of that request to Ms N.

63. I deal later in these reasons with the issue of whether Mr King in fact misunderstood the applicant’s request. The focus for IPP 9, in context, is whether Mr King took reasonable steps to ensure that his understanding of what was stated in the applicant’s email of 14 July 2020 was correct. Within the 3-day period (14 to 17 July 2020) that he dealt with the matter, Mr King requested the applicant to ring him so that he could better understand the background to his request, and he twice asked the applicant to provide a phone number which would enable Mr King to ring him. The applicant did not respond to those requests by providing a telephone number. There is conflicting evidence as to whether the applicant did attempt to contact Mr King by telephone. The applicant says he did ring. Mr King says that he did not receive any call, or message. There is no objective evidence (such as a call record) that would allow this issue to be resolved one way or the other.

64. It is clear from the applicant’s email exchanges with Mr King that he wanted the information to be provided in writing. The difficulty for Mr King was that he did not have sufficient information from the applicant to know how to properly address his question in writing. Nevertheless, Mr King did provide some information that the applicant considered responsive to his request in his first email of 17 July 2020 (par 16 above) as is evident from the applicant’s response.

65. Given the challenges he faced in communicating with the applicant I am satisfied that Mr King took reasonable steps to ensure that the applicant’s request to participate in the mediation was accurate, up to date and not misleading before he communicated information about that request to Ms N. Mr King’s conduct did not contravene IPP 9.

66. The applicant’s ultimate contention is that Mr King disclosed his personal information, being his name in connection with his request to participate in the mediation to Ms N, in contravention of IPP 11 (s 18 of the PPIP Act).

67. As I have already explained above, the applicant’s email to Mr King of 14 July 2020 was unsolicited by Mr King and therefore was not “collected” by the agency for the purposes of the PPIP Act. Nevertheless, it was personal information that was “held” for the purposes of that Act.

68. There will be a contravention of IPP 11 unless one of the exceptions found in s 18(a), (b) or (c) apply. Paragraph (a) cannot apply because it is limited to personal information that is collected by the agency. It is also clear that paragraph (c) is not relevant in the circumstances of this case. The issue is whether the disclosure falls within the s 18(b) exception. That is because it applies to information ‘held’ as well as to information collected by the agency. I am satisfied that the disclosure does fall within that exception.

69. The applicant’s email of 14 July 2020 must be put in its specific context. Prior to sending the email, the applicant became aware of a scheduled mediation between Ms N and the Strata Manager/Owners Corporation and of the name of the mediator who had been appointed by the agency to conduct that mediation. This was Mr King. He also became aware of the time and date of the mediation (or at least he thought he knew this).

70. The applicant then emailed Mr King directly, stating in effect: (a) he was a Lot Owner in the strata plan, (b) that the mediation application he had seen stated that not all lot owners could be contacted in relation to whether they supported the application, and (c) that he was a Lot Owner who had not been contacted in relation to the mediation application. He then requests Mr King to “please urgently advise whether I and any other owner may join this application, and if so how”.

71. This was patently not an abstract request for information about how a Lot Owner could participate in a strata scheme’s mediation. It was clearly a request by the applicant to “join” the mediation on Monday 20 July 2020. In this respect his use of the word “application” clearly means the mediation. If there is any doubt about that it is dispelled by the applicant’s email to Mr King on 17 July 2020 (paragraph 19 above) where he complains that it is Friday afternoon, the mediation is set down for Monday and “there is very little time left to confirm what is correct and in any case for me to participate”.

72. I also note that the applicant had already contacted the agency’s contact centre to make inquiries about participation about in mediations conducted by the agency before he contacted Mr King. It may be inferred from this that in contacting Mr King he had the specific purpose of requesting to join the mediation. He was not seeking general information.

73. There is therefore no reasonable objective basis upon which it could be concluded that Mr King misunderstood the meaning of the applicant’s email of 14 July 2020: that is, that it was a request by the applicant to participate in the mediation. The interpretation of the intention and meaning of the request he made on 14 July 2020 contained in the applicant’s email to Ms Rance of 17 September (paragraph 26 above) is an attempt to draw a distinction where there is no difference. The fact that the agency has subsequently agreed to amend Mr King’s email to Ms N to reflect a different meaning to attempt to resolve this dispute does not alter that fact that Mr King’s original interpretation of the applicant’s request was correct.

74. Having reached that conclusion it is necessary to consider if the applicant would have been “reasonably likely to have been aware … that information of that kind is usually disclosed” in this case to the applicant for mediation. The test is one of ‘reasonableness’ and it is an objective test. I am satisfied that a person who requests to join a specific mediation would, reasonably, be aware that the applicant for mediation would be informed of that request and asked their views about the request. It would be contrary to common sense that a person could join a mediation without the original parties to the mediation being consulted first about whether they should be permitted to do so.

75. I thus conclude that Mr King did not contravene IPP 11 when he contacted Ms N by email on 16 July 2020 to advise that the applicant had requested to be part of the mediation and to ask if this was acceptable to her. This disclosure falls with the exception found in s 18(1)(b).

76. Additionally, and in any event, I am satisfied that Mr King’s email to Ms N of 16 July 2020 is an exempt disclosure under s 25 of the PPIP Act. In this respect, at the material time, Mr King was carrying out under delegation the statutory functions of the Secretary under s 218 of the SSM Act. Specifically, he was arranging mediation in accordance with the SSM Regulation. In accordance with r 59 it was necessary for Mr King to determine the parties to the mediation to provide for their attendance. He was also required to determine if he would exercise the discretion conferred by r 59(2) to grant leave for non-parties to attend the mediation session. It must be accepted that this reasonably required him to consult the applicant for the mediation about a request from a non-party to the mediation application to participate in the mediation. I am satisfied that a purposive reading of s 218(2) and r 59 leads to the conclusion that Mr King was lawfully authorised by those provisions to notify Ms N of the applicant’s request to participate and to ascertain her views as to whether that was appropriate: s 25(1)(a). Additionally, or alternatively, non-compliance with IPP 11 in these circumstances is necessarily implied by s 218(2) and r 59.

77. I note r 58 of the SSM Regulation. If the Secretary has issued directions in accordance with that Regulation they are not in evidence, and thus do not take the matter any further.

Order

85. 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: 09 November 2022