FHH v Port Stephens Council - [2023] NSWCATAD 101

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: FHH v Port Stephens Council [2023] NSWCATAD 101
Hearing dates: 7 July 2022 and 30 September 2022
(Submissions closed 16 November 2022)
Date of orders: 02 May 2023
Decision date: 02 May 2023
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer Senior Member
Decision:
(1) Pursuant to s 44 (1) of the NCAT Act FHH’s spouse FTU is joined as a party (applicant) to these proceedings.
(2) Pursuant to s 55 (2) of the PPIP Act, on reviewing the conduct of the respondent public sector agency, the Tribunal decides not to take any action on the matter.

Catchwords:
ADMINISTRATIVE LAW - Privacy – Personal Information – disclosure – whether personal information disclosed – meaning of publicly available publication

Legislation Cited:
Administrative Decisions Review Act 1997
Anti-Discrimination Act 1977
Civil and Administrative Tribunal Act 2013
Freedom of Information Act 1989 (Repealed)
Government Information (Public Access) Act 2009
Privacy and Personal Information Protection Act 1998
Privacy and Personal Information Protection Regulation 2019
Privacy Act 1988 (Cth)

Cases Cited:
BYW v Commissioner of Police, NSW Police Force [2014] NSWCATAD 53
Commissioner of Police New South Wales Police Force v Fine [2014] NSWCA 327
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409
DRP v Orange City Council [2020] NSWCATAD 220
HP- v – Hunter New England Area Health Services [2009] NSWADT 186
JD v New South Wales Medical Board [2008] NSWADT 67
NW v Fire Brigades [2005] NSWADT 73
Privacy Commissioner v Telstra Corporation Limited [2017] FCAFC 4
University of New South Wales v PG (GD) [2008] NSWADTAP 26
VK v Department of Education and Training (No 2) [2009] NSWADT 286

Texts Cited:
The Macquarie Dictionary 3rd Edition

Category: Principal judgment
Parties: FHH (First Applicant)
FTU (Second Applicant)
Port Stephens Council (Respondent)
Representation: Solicitors: Applicants: (Self represented)
Respondent: Lindsay Taylor Lawyers

File Number(s): 2022/00042970
Publication restriction: Section 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 prohibiting or restricting the disclosure of the name of the applicants.

REASONS FOR DECISION

On 14 February 2022 the first applicant ‘FHH’ lodged an application for administrative review with the Tribunal. That application relates to an Internal Review which the applicant sought from the respondent agency concerning a privacy grievance. The respondent is Port Stephens Council (the Council).
The matter centres around the Council holding an information education session for Local Government officers relating to freedom of information. The concern of the first applicant and her husband who I have joined to the proceedings is that the vast majority of the information session used their own dealings with Council as subject matter, thereby disclosing their identities and business with Council and as a result, it is asserted, breaching their privacy.
FHH is the first applicant’s pseudonym, and due to the joinder order discussed below FTU is the second applicant’s pseudonym, in that the Tribunal has de-identified the names of applicants from any open reasons consistent with the practice of…

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: [2023] NSWCATAD 101
Decision Date: 02 May 2023

CaseChat Overview and Summary

In this case, the parties involved were FHH and the Port Stephens Council, with FHH's spouse, FTU, also joining as a party. The nature of the dispute centred on whether personal information had been disclosed, specifically whether the information released by the Port Stephens Council was considered personal information under the Privacy and Personal Information Protection Act (PPIP Act). The matter was heard by the New South Wales Civil and Administrative Tribunal (NCAT). The legal issues before the court included the interpretation of the term "personal information" as defined in the PPIP Act and whether the information disclosed by the Council constituted such personal information. Additionally, the court needed to determine the meaning of "publicly available publication" in the context of the disclosure of personal information.

The NCAT, in its decision, first clarified the definition of personal information as outlined in the PPIP Act, which includes information or an opinion that can identify an individual. The court then examined whether the information disclosed by the Port Stephens Council was of a kind that could be considered personal information. The NCAT concluded that the information in question did not constitute personal information because it was already publicly available. The court found that the term "publicly available publication" meant information that is readily accessible to the public without restriction, and thus, the disclosure did not breach any privacy provisions.

As a result of its reasoning, the Tribunal determined that the conduct of the Port Stephens Council did not warrant any action under section 55 (2) of the PPIP Act. The court also made an order pursuant to section 44 (1) of the NCAT Act to join FHH's spouse, FTU, as a party (applicant) to these proceedings. The final order of the NCAT was that no action would be taken against the respondent public sector agency.

Orders

Orders of the court

(1) Pursuant to s 44 (1) of the NCAT Act FHH’s spouse FTU is joined as a party (applicant) to these proceedings.

(2) Pursuant to s 55 (2) of the PPIP Act, on reviewing the conduct of the respondent public sector agency, the Tribunal decides 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:	FHH v Port Stephens Council [2023] NSWCATAD 101
Hearing dates:	7 July 2022 and 30 September 2022 (Submissions closed 16 November 2022)
Date of orders:	02 May 2023
Decision date:	02 May 2023
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer Senior Member
Decision:	(1) Pursuant to s 44 (1) of the NCAT Act FHH’s spouse FTU is joined as a party (applicant) to these proceedings. (2) Pursuant to s 55 (2) of the PPIP Act, on reviewing the conduct of the respondent public sector agency, the Tribunal decides not to take any action on the matter.
Catchwords:	ADMINISTRATIVE LAW - Privacy – Personal Information – disclosure – whether personal information disclosed – meaning of publicly available publication
Legislation Cited:	Administrative Decisions Review Act 1997 Anti-Discrimination Act 1977 Civil and Administrative Tribunal Act 2013 Freedom of Information Act 1989 (Repealed) Government Information (Public Access) Act 2009 Privacy and Personal Information Protection Act 1998 Privacy and Personal Information Protection Regulation 2019 Privacy Act 1988 (Cth)
Cases Cited:	BYW v Commissioner of Police, NSW Police Force [2014] NSWCATAD 53 Commissioner of Police New South Wales Police Force v Fine [2014] NSWCA 327 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409 DRP v Orange City Council [2020] NSWCATAD 220 HP- v – Hunter New England Area Health Services [2009] NSWADT 186 JD v New South Wales Medical Board [2008] NSWADT 67 NW v Fire Brigades [2005] NSWADT 73 Privacy Commissioner v Telstra Corporation Limited [2017] FCAFC 4 University of New South Wales v PG (GD) [2008] NSWADTAP 26 VK v Department of Education and Training (No 2) [2009] NSWADT 286
Texts Cited:	The Macquarie Dictionary 3rd Edition
Category:	Principal judgment
Parties:	FHH (First Applicant) FTU (Second Applicant) Port Stephens Council (Respondent)
Representation:	Solicitors: Applicants: (Self represented) Respondent: Lindsay Taylor Lawyers
File Number(s):	2022/00042970
Publication restriction:	Section 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 prohibiting or restricting the disclosure of the name of the applicants.