FRN v Cumberland City Council

Case •

[2025] NSWCATAD 74

•

24 February 2025

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: FRN v Cumberland City Council [2025] NSWCATAD 74
Hearing dates: 22 April 2024
Date of orders: 24 February 2025
Decision date: 24 February 2025
Jurisdiction:Administrative and Equal Opportunity Division
Before: R C Titterton OAM, Senior Member
Decision:

(1) These reasons are not to be published on NSW Caselaw before 24 March 2025.

(2) The Tribunal will take no action on the matter.

(3) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the name of the applicant is prohibited. This includes a reference to any information, picture or other material that identifies the applicant or is likely to lead to the identification of the applicant

(4) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the confidential material filed by the respondent or matters contained in this material is prohibited.

(5) Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the confidential material or matters contained in this material is restricted to the respondent and the Tribunal.

Catchwords:

ADMINISTRATIVE REVIEW – Privacy and Personal Information Protection Act 1998 (NSW) – Information Privacy Principles

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW), ss 9, 63

Child Protection (Working with Children) Act 2012 (NSW).

Privacy and Personal Information Protection Act 1998 (NSW), ss 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 , 21, 25, 53, 55

Ombudsman Act 1974 (NSW)

Cases Cited:

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430

DTN v Commissioner of Police [2022] NSWCATAD 134

EMF v Cessnock City Council [2021] NSWCATAP 234

FHY v Cumberland City Council, FGJ v Cumberland City Council [2024] NSWCATAD 92

Gussoni v Burnheim [2018] NSWCATAP 75

Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186

Mifsud v Campbell (1991) 21 NSWLR 725

Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286

Soulmezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Vice-Chancellor, Macquarie University v FM [2003] NSWADTAP 43

Texts Cited:

None cited

Category:Principal judgment
Parties: FRN (Applicant)
Cumberland City Council (Respondent)
Representation: Applicant (Self-represented)
C McFadzean, General Counsel of the respondent (Respondent)
File Number(s): 2023/00017117
Publication restriction: None

REASONS FOR DECISION

  1. Reasons for decision were first published to the parties on 19 September 2024. As noted below, I had indicated during the course of the hearing I would give the parties the opportunity to make submissions on appropriate redactions of the reasons.

  2. Both parties provided submissions dated 25 September 2024. In the case of the applicant, extensive redactions were sought.

  3. Each party was given the opportunity to comment on each other’s submissions, but neither did so.

  4. A further version of the reasons, taking into account the parties’ submissions, was published to the parties on 18 December 2024. By and large, I made all of the redactions sought by each party.

  5. The Tribunal then received a further request for further redactions of reasons from the applicant. These had not been provided to the respondent so on 9 January 2025 the Tribunal issued further directions giving the respondent the opportunity to respond and the applicant to reply.

  6. By and large I have made the redactions sought by the parties. However, I decline to redact my reasons which refer to other publicly available Tribunal reasons for the reasons explained below.

  7. I note that the applicant sought that I redact the names of some, but not all, of the respondent’s employees. For consistency, I have redacted the names of all of the respondent’s officers referred to in the evidence.

  8. I also took the opportunity to make amendments to the reasons pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 (NSW).

  9. Finally, for the benefit of the Appeal Panel in the event of an appeal, there will be some differences between this version of the reasons and the version previously published to the parties, mainly reflecting the applicant’s request that their gender not be disclosed publicly.

  10. This version of the reasons will not be published on NSW Caselaw before 24 March 2025. This is to afford the parties the opportunity to consider whether either wishes seek a stay of the publication of the reasons pending the filing of a Notice of Appeal.

  11. Accordingly, I have directed the Registry not to publish these reasons before 24 March 2025.

Introduction

  1. By application dated 17 January 2023, the applicant seeks a review of a decisions of the respondent of 30 November 2022.

  2. For the following reasons, I have decided to take no action on the matter.

Background

Privacy Review application – 16 October 2022

  1. By application dated 16 October 2022, the applicant had sought internal review (Privacy Review Application) in the following terms:

This privacy review is similar in nature to the one I submitted to Council on 13 [October] 2021 (currently NCAT proceedings no. 2021/356513) in that it is in regards to additional conduct I have now become aware of which bolsters my allegation that there was an abuse of process. Such an abuse of process constitutes a breach of multiple IPPs.

On 4 April 2017, I submitted a bullying and harassment complaint to Council's General Manager at Cumberland Council, claiming that I had been bullied and harassed by [NOT FOR PUBLICATION] and [NOT FOR PUBLICATION]. My complaint was then investigated through O'Connell Group.

On [NOT FOR PUBLICATION], O'Connell Group conducted an interview with [NOT FOR PUBLICATION] during which (I allege) my personal information was collected by Council.

The collection of my personal information from [NOT FOR PUBLICATION] during this investigation was a misuse of my personal information. I allege it was unnecessary, excessive, inappropriate, irrelevant and intrusive because [NOT FOR PUBLICATION] had no knowledge of / nothing to do with my bullying and harassment of [NOT FOR PUBLICATION] and [NOT FOR PUBLICATION].

[NOT FOR PUBLICATION], [NOT FOR PUBLICATION] and [NOT FOR PUBLICATION] were all aware that I had a falling out with [NOT FOR PUBLICATION]. I believe [NOT FOR PUBLICATION] was invited to attend the O'Connell Group for an interview for the purposes of mudslinging at me to discredit my character and to twist the scope of the investigation to target me, as opposed to the original scope of investigating the alleged conduct of [NOT FOR PUBLICATION] and [NOT FOR PUBLICATION].

The collection and use of my personal information from [NOT FOR PUBLICATION] in the O'Connell Group investigation is a breach of the following IPPs:

8 (1)(a) collection was 'unrelated', 8(1)(b) 'unreasonably necessary'

10 (a,b,e) - Council took no steps to ensure I was aware that my personal information would be collected from [NOT FOR PUBLICATION], the purposes of the information collected from [NOT FOR PUBLICATION], or whether I had any right to access or correct the information from [NOT FOR PUBLICATION].

11(a) - I allege Council collected personal information from [NOT FOR PUBLICATION] about me that was excessive to the purpose of investigating [NOT FOR PUBLICATION] and [NOT FOR PUBLICATION].

11(b) I allege this collection was unreasonably intrusive on my personal affairs as I no longer worked at Council when Council collected personal information about me from a former colleague I had a falling out with. I allege that Council used the information from [NOT FOR PUBLICATION] to inform their subsequent detrimental findings and recommendations regarding me. I did not consent to this when I submitted the bullying and harassment complaint.

13(b), 13(c(l,i,iii)) As far as the personal information gathered/ held in that investigation, Council took 'no steps to enable me to ascertain the nature of the information, the main purposes for which it was used and my entitlement to gain access to the information.

16 l allege Council did not check the relevance, accuracy or completeness etc. of the information collected by [NOT FOR PUBLICATION] before use.

17 - Council used my personal information gathered from [NOT FOR PUBLICATION] in an investigation purportedly for the purposes of investigation of bullying and harassment of [NOT FOR PUBLICATION] and [NOT FOR PUBLICATION] against me. I did not consent to this. I allege that the collection/ use of information gathered from [NOT FOR PUBLICATION] was 'unrelated' to the primary purpose of collection.

An audio recording/transcript of [NOT FOR PUBLICATION]'s interview were produced by O'Connell Group, but not provided to me. I ask that these transcripts are analysed in the course of this privacy review.

Encl. excerpt from O'Connell Group Investigation Report dated [NOT FOR PUBLICATION], pages 3-5 - showing the scope of the investigation was altered, that findings against me were made, and that [NOT FOR PUBLICATION] was interviewed.

Original Decision – 30 November 2022

  1. The respondent made a decision on the applicant’s Privacy Review Application on 30 November 2022. In a written decision, the respondent stated:

The Council has now made a decision on the application. Council's findings are that it did not breach the Privacy and Personal Information Protection Act 1998 (PPIP Act). Reasoning for the Council's findings are:

1. The scope of the O'Connell investigation derived from two separate matters, namely your bullying and harassment complaint and child protection concerns. Collection of personal information from [NOT FOR PUBLICATION] related to child protection considerations and was for a lawful purpose.

2. Section 24 of the PPIP Act exempted Council from compliance with Information Protection Principle (IPP)

3. Council did not have a positive obligation under IPP 6 to inform you of personal information it held concerning you.

4. Your belief that [NOT FOR PUBLICATION] was interviewed for the purpose of 'mudslinging' you, to discredit your character and to twist the scope of O'Connell's investigation is speculative and miscomprehends the dual purpose of O'Connell's investigation. No information was provided in your application to support a claim that Council did not check the relevance, accuracy or completeness of information it collected.

Having regard to the above, the Council has determined under s.53(7) of the PPIP Act to take no further action on the matter.

Evidence before the Tribunal

Applicant’s evidence

  1. The applicant’s materials, both evidence and submissions were voluminous.

  2. The materials included the following:

  1. a 424 page of principally emails between the applicant and various officers of the respondent filed on 21 March 2024;

  2. a further 25 page bundle of materials filed on 21 March 2024;

  3. a further 16 page bundle of materials being medical reports and certificates filed on 21 March 2024;

  4. a 28 page statement of the applicant filed on 21 March 2024;

  5. a 33 page bundle of materials filed on 16 April 2024, being the respondent’s Privacy Management Plan dated 5 July 2023 (PMP).

  1. In addition to these materials, the applicant also filed 93 pages of submissions on 21 March 2023, and 25 pages of submissions in reply (post hearing) dated 20 June 2024.

  2. The applicant was briefly cross-examined by the respondent’s representative Mr McFadzean.

Respondent’s evidence

  1. The respondent’s material included the following:

  1. an (unpaginated but approximately 300 page) bundle of documents filed on 21 August 2023. This material included “open” and confidential statements of its Manager, Strategy and Improvement [NOT FOR PUBLICATION], “open” and confidential documents, and a bundle of relevant legislation;

  2. a statement of Mr Jones dated 8 April 2024;

  3. a Deed of Release dated 25 August 2020 entered into by the applicant, the respondent and StateCover Mutual Ltd (Workcover Deed).

  1. On 15 April 2024, the respondent also filed submissions dated 9 April 2024, and post hearing submissions dated 6 May 2024.

  2. The applicant cross-examined Mr Jones at the hearing.

Summary of applicant’s position and relief sought

  1. The applicant has provided an Executive Summary of their claims and the relief sought in submissions filed 21 March 2024. The applicant states:

1. In July - December 2016 l worked for Cumberland Council Childrens Services. Concerns were raised about my conduct and were found to be unsubstantiated. Management handled the matter so poorly; I left work and I made a complaint of Bullying and Harassment against [NOT FOR PUBLICATION] and [NOT FOR PUBLICATION].

2. After I left Council - and without my knowledge - Council covertly collected and used very sensitive personal information about me from an anonymous source, and allegations from a former colleague of mine [NOT FOR PUBLICATION] to flip its previous findings regarding me of 'unsubstantiated' to 'sustained sexual misconduct.' The evidence will show how Council's use of my personal information is a text book example of a 'witch-hunt.'

3. Council's new findings (by law) triggered and unnecessarily prolonged a 2½ year long bar on my Working With Children Check (WWCC) from November 2017 to June 2020.

4. On 1 May 2020 the NSW Ombudsman's review found that all of Council's findings against me were "impossible" and my WWCC was reinstated.

5. Cumberland Council's mishandling of my personal information has had a profound, prolonged and ongoing impact on my reputation, livelihood, career and mental health.

6. I request that under the PPIP Act s. 55(2)(a, d, e and g) the Tribunal order Council to;

a. apologise,

b. correct the records regarding me that Council 'holds' and has 'disclosed',

c. make a commitment to cease collecting/ using my personal information to investigate' me and

d. pay for damages and loss of $40,000 for its conduct.

  1. 91 pages later the applicant then states:

I submit that the abundance of Medical evidence (in Bundle FRN 1 and FRN 3
"Medical Evidence") - that shows the connection between the conduct complained of and its detrimental, persistent and ongoing impact on my personal life and career - is sufficient to warrant the maximum damages that the Tribunal can make under s. 55 of the PPIP Act.

  1. Commencing at p 89 of the submissions, the applicant states:

12. SUMMARY OF CONDUCT COMPLAINED OF

421   Cumberland Council's 'collection' and subsequent 'use' and 'disclosure' of allegations regarding me from [NOT FOR PUBLICATION]'s 5 May 2017 O'Connell Group interview was a 'misuse' of my personal information, especially since I was not aware this was happening and since I had left Council's employ around 5 months earlier.

422   I believe [NOT FOR PUBLICATION] was invited to attend the O'Connell Group for an interview for the purposes of mudslinging at me to discredit my character and to twist the scope of the investigation to target me, as opposed to the original scope of investigating the alleged conduct of [NOT FOR PUBLICATION] and [NOT FOR PUBLICATION]. This is evidenced by the extraordinary amount of content in the O'Connell Group Reports that are dedicated to explore the veracity of allegations made against me for the context of attributing wrongdoing to me, and generating new findings / recommendations made against me. O'Connell Group 'used' the added complaints against me from [NOT FOR PUBLICATION] and the FACS Letter to attempt to justify [NOT FOR PUBLICATION] and [NOT FOR PUBLICATION]'s conduct. This 'misuse' of my personal information is detrimental reprisal action against me for my complaint.

423   Cumberland Council's collection and use of my personal information from [NOT FOR PUBLICATION] and the FACS Letter in the O'Connell Group investigation is a breach of the following lPPs:

IPP 8 (1)(a) collection was 'unrelated 'excessive' and 8(1)(b) 'unreasonably necessary' for the primary purposes of both the bullying and harassment complaint and purported 'child protection' concerns. Council claims [page 5] that the FACS Letter prompted a collection of information from [NOT FOR PUBLICATION]. The FACS Letter was unsolicited and "anonymous". Council had no obligation to collect information regarding it. Council had no lawful reason to collect allegations from [NOT FOR PUBLICATION] regarding my work in 2016 because in May 2017 I was not an employee and posed no threat to children entrusted to Council's care.

IPP 10 (a,b,e) — I made numerous requests for information to Council in accordance with Council's own Privacy Management Plan. Council took no steps to ensure I was aware that my personal information would be collected from [NOT FOR PUBLICATION] (10. a), the purposes of the information collected from [NOT FOR PUBLICATION] (10.b), or whether I had any right to access or correct the information from [NOT FOR PUBLICATION]. (10. e).

IPP 11(a) — Council collected personal information from [NOT FOR PUBLICATION] about me that was excessive to the purpose of investigating [NOT FOR PUBLICATION] and [NOT FOR PUBLICATION]. The collection and subsequent 'use' was also 'excessive' and 'irrelevant' to any purported 'child protection' purpose as I had submitted my resignation, no longer worked at Council and could not have posed any risk of harm to anyone at [NOT FOR PUBLICATION].

IPP 11(b) The collection of my personal information from [NOT FOR PUBLICATION] was unreasonably intrusive on my personal affairs. I allege that Council used the innuendo contained within the information collected from [NOT FOR PUBLICATION] to inform the subsequent detrimental findings and recommendations that Council made regarding me in the O'Connell Group Reports and personal information about me in the Notification Forms A and B. The Council's subsequent 'use' and 'disclosure' of those findings unnecessarily triggered and prolonged a meaningless interim bar on my WWCC for 2 14 years. The NSW Ombudsman's findings that effectually overturned all Council's detrimental findings regarding me shows that Council's collection was 'unreasonably intrusive on my personal affairs.'

IPP 12(a) The "concerns" about my conduct that Cumberland Council acquired in the 18 April 2017 FACS Letter and 'collected' from [NOT FOR PUBLICATION] on 5 May 2017 was kept for longer than necessary, as I had ceased work with Council on 16 December 2016.

IPP 12(c) Council failed to protect the information contained within the FACS Letter against 'unauthorised access 'use' and 'disclosure' when it chose to send a copy of the FACS Letter to O'Connell group to 'use' and again when Council chose to "cover off" ('disclose' I discuss) the allegations contained within the FACS Letter with [NOT FOR PUBLICATION] on 5 May 2017 — five months after I ceased working at Council.

IPP 13(b), 13(c(i,ii,iii)), lPP 14 I requested my personal information from Council countless times in writing which enlivens Council's obligations under IPP 13 and IPP 14 and its own Privacy Management Plan. The NSW Ombudsman also requested Council be more transparent with the details and context of the allegations it held regarding me. Council ignored the NSW Ombudsman's advice.

Council took no reasonable steps to enable me to ascertain the 'nature' or context of the personal information it collected and held from [NOT FOR PUBLICATION] on 5 May 2017, the main purposes for which it was used and my entitlement to gain access to the information.'

IPP 16 Council did not check with me whether the information it collected from [NOT FOR PUBLICATION] regarding me on 5 May 2017 was relevant to the bullying and harassment complaint (or child protection-related).

Council did not check with me whether the information it 'collected', from [NOT FOR PUBLICATION] on 5 May 2017, and subsequently 'used' and 'disclosed' in the O'Connell Group Reports and Forms A and B to the NSW Ombudsman and Office of the Children's guardian was accurate, complete, up to date and not misleading.

IPP 17 / 18 Council used my personal information gathered from [NOT FOR PUBLICATION] in an investigation purportedly for the purposes of investigation of bullying and harassment of [NOT FOR PUBLICATION] and Ms Atha against me. I did not consent to this. I allege that the collection! use of information gathered from [NOT FOR PUBLICATION] was 'unrelated' to the primary purpose of collection.

As I no longer worked at Cumberland Council, Council's purported collection from [NOT FOR PUBLICATION] of information related to purported 'child protection' issues was invalid as a 'secondary purpose' of collecting and 'using' that information

  1. After setting out s 55 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act), the applicant then states:

RELIEF REQUESTED BY ORDER OF THE TRIBUNAL:

a. I want Council to apologize for:

i. abusing the O'Connell Group investigative process to unfairly and covertly collect my personal information that was excessive and irrelevant to the initial scope of the O'Connell Group investigation, and

ii. refusing to inform me that Council intended to use the O'Connell Group investigative process to collect, use and disclose detrimental personal information about me to the NSW Ombudsman and Office of the Children's Guardian to the detriment of my career.1

b. I want Council to attach memo's to the information it collected from the O'Connell Group investigations regarding me to say words to the effect of:

"This personal information collected and used regarding [FRN] in the course of this investigation was not checked that it was accurate, incomplete, up to date, relevant, not excessive and not misleading before it was used and disclosed. It is possible that the information contained within is inaccurate, incomplete and misleading." [1]

c. council to pay appropriate compensation to me for the damages caused of $40,000. [2]

d. I would like Cumberland Council to make a commitment to stop collecting personal information about me in the future. [3]

1. Here the applicant notes that this order can be made under s 55(2)(g) of the PPIP Act.

2. Here the applicant notes that this order can be made under ss 55(2)(c), (d), (e) and (g) of the PPIP Act.

3. Here the applicant notes that this order can be made under ss 55(2)(c), (d), (e) and (g) of the PPIP Act.

Summary of the respondent’s position

  1. A summary of the respondent’s position appears at p 11 of its submissions of 16 August 2023 as follows:

Council's Position on Relief

55. Relief is not warranted. For reasons addressed within these submissions and in the evidence of Mr Jones, the Council maintains that it did not breach any of the IPPs.

56. There was no abuse of the O'Connell investigation process to target FRN. The scope of the investigation was expanded to consider child protection issues stemming from the FACS Letter.

57. Alleged misinformation in the O'Connell investigation has not been identified, let alone misinformation pertaining to personal information collected from [NOT FOR PUBLICATION].

58. As Council's position is that it did not breach an IPP, a consequential submission is that there is no sound basis order under s.55(2)(a) that the Council pay damages to the applicant. There is no link established between any personal information provided by [NOT FOR PUBLICATION] and any loss suffered by the applicant.

59. Council denies having ever targeted FRN and further submits that even if the Tribunal finds Council breached the Act, an order that Council commit to not targeting FRN is an inappropriate form of relief that would serve no real utility.

60. Similarly, an order that Council stop investigating FRN in the future is inappropriate. Whilst Council does not envisage a need to further investigate FRN, noting more than 6 years has lapsed since [they were] employed by Council, if it received, for instance, a future complaint or complaints about historic claims of inappropriate conduct with children, it would be inappropriate to prevent the Council from investigating such complaint/s.

  1. In addition, by way of high level summary, the respondent also submits:

  1. the applicant's case as presented in submissions and evidence strays from the privacy complaint the subject of these proceedings in that:

  1. the complaint, which carefully listed out alleged breaches of the information protection principles, did not assert breaches of ss 12 and 14 of the PPIP Act, yet detailed submissions go to alleged breaches of those sections;

  2. the complaint did not assert a breach of s 18 of the PPIP Act, yet the submissions obliquely go to an alleged breach of that section, in conjunction with a breach of s 17;

  3. the complaint alleged breaches of ss 8 and 10 of the PPIP Act, yet the applicant's evidence and submissions do not squarely address those sections other than in summary form at [425] of the applicant's submissions.

  1. the privacy complaint concerns:

  1. the collection by the respondent of personal information about the applicant from [NOT FOR PUBLICATION] by way of interview carried out by O’Connell Workplace Relations (OWR) on 5 May 2017;

  2. the accuracy of that collected information;

  3. how the respondent used the information; and

  4. the respondent’s purported refusal to let the applicant access to, or to find out about, the collected personal information.

  1. the applicant's evidence and submissions impermissibly seek to recast the application to cover an array of other material and grievances including:

  1. asserted disclosures to (not from) [NOT FOR PUBLICATION];

  2. the collection, use, disclosure and security of a letter from Family and Community Services (FACS) to the respondent;

  3. the adequacy of investigations by OWG and the respondent into the applicant’s conduct;

  4. assertions as to the identity of witnesses to and complainants about the applicant’s conduct, other than [NOT FOR PUBLICATION].

  1. Importantly, the respondent submits that, in all practical senses, the applicant’s arguments were contested and determined by the Tribunal in FHY v Cumberland City Council; FGJ v Cumberland City Council [2024] NSWCATAD 92 (collectively FHY). While accepting that the Tribunal is not bound by rules of precedent (stare decisis) and is not bound to follow decisions of other Senior Members, the respondent submits that in respect of s 13 of the PPIP Act, the findings made at [170] and [172] of that decision not imposing any positive obligation on the respondent should be “equally found” in these proceedings.

The applicant’s position in reply

  1. The applicant’s submissions in reply commence by noting the applicant had not read the respondent’s post-hearing submissions due to health considerations. The applicant did not wish to exacerbate their injuries by subjecting themself to, amongst other matters, “intellectual dishonesty” designed to protect the respondent from accountability.

  2. The applicant then states that due to time constraints at the hearing it was not possible ask all the questions they wished to of the respondent’s witnesses and asks the Tribunal consider for itself the 33 questions set out in their submissions in reply as follows:

  1. Was it a proper function, a legal function and/or a proper activity of the respondent to collect additional details of allegations regarding the applicant from their former colleague/the FACS Letter when the applicant was no longer employed by the respondent?

  2. Did the respondent collect/use additional allegations from the FACS Letter and/or [NOT FOR PUBLICATION] that was “more than necessary” for the purposes of investigating whether or not [NOT FOR PUBLICATION] and [NOT FOR PUBLICATION] were bullying and harassing the applicant?

  3. Did the respondent breach part of the respondent’s PMP?

  4. When the respondent anticipated that it would covertly conduct an investigation on allegations regarding the applicant through OWG did it breach the PMP by refusing to obtain [the applicant’s] authorisation or inform the applicant?

  5. After the respondent collected additional details of new and old allegations regarding the applicant during the execution of the OWG investigation, did it then advise the applicant “of such” via any letter or orally?

  6. Did Mr Taylor directly offend this policy by misleading the applicant to believe that the respondent had not collected any new allegations nine months after it had collected new allegations from the FACS Letter and [NOT FOR PUBLICATION]?

  7. Did the respondent fail to tell the applicant why it was collecting additional details of the new and old allegations regarding the applicant in the execution of the OWG investigation?

  8. Did the respondent file to inform the applicant of its purported secondary “purpose” of its “collection”?

  9. Did the respondent ever inform the applicant that it intended to forward allegations and findings about the applicant to the New South Wales Ombudsman or the Office of the Children’s Guardian?

  10. Did the respondent have any excuse to refuse to inform the applicant that it was collecting additional details of new and old allegations about the applicant, what that information was, what it intended to do with that information and whether the applicant had any right of access to correct the information?

  11. Did the respondent collect the applicant’s personal information “that unreasonably impacted” on the applicant’s personal affairs?

  12. Did the respondent protect the information contain within the FACS Letter from unauthorised access, use or disclosure, when it “covered off” the allegations within it to [NOT FOR PUBLICATION]?

  13. Did [NOT FOR PUBLICATION] collect sensitive information personal information regarding the applicant – information that is contained within the unredacted version of the FACS Letter – that was disclosed to [NOT FOR PUBLICATION] during the interview with the OWR on 5 May 2017?

  14. Did the respondent do “everything recently within its power” to protect the information in the FACS Letter from “unauthorised use” when it gave it to OWG to consider in an investigation regarding [NOT FOR PUBLICATION] and [NOT FOR PUBLICATION]?

  15. In October 2016 to May 2017, was the respondent required to provide the applicant with access to the information held regarding the applicant without excessive delay?

  16. Did the respondent bridge the policy set out in IPP 8 in its PMP by failing to take any steps at all to inform the applicant of any right to correct any new allegations about the applicant that it held during the OWR investigation?

  17. Did [NOT FOR PUBLICATION] offend the PMP when she refused to correct the misleading headings on the respondent’s meeting minutes?

  18. Should the respondent amend the words in its letters to the applicant of 22 February 2017 and 19 March 2017?

  19. Did the respondent breach ss 15(1) and (2) of the PPIP Act by refusing to amend the applicant’s personal information, as requested by the applicant in the internal privacy review form, so that those documents were more accurate, complete, up-to-date and not misleading?

  20. “The information is old, [the respondent] does not propose to act on it now, what is the point in attaching a memo to these documents?”

  21. Before using the personal information regarding the applicant that the respondent collected from the FACS Letter to make it various findings, did the respondent ensure that the information was accurate and confirm the details?

  22. Did [NOT FOR PUBLICATION] make sure the FACS Letter was accurate before disclosing it to the OWR?

  23. Did the respondent follow the guidelines then available to it, namely the 2017 NSW Ombudsman’s guidelines on investigating reportable conduct, in conducting its investigations regarding the applicant?

  24. Did the respondent disclose the information about the applicant in the FACS Letter or from [NOT FOR PUBLICATION] for a purpose unrelated to the bullying and harassment complaint of [NOT FOR PUBLICATION] and [NOT FOR PUBLICATION]?

  25. Did the respondent gain the applicant’s express consent to use any allegations regarding the applicant in the OWR investigation for any purpose other than investigating their complaint against [NOT FOR PUBLICATION] and [NOT FOR PUBLICATION]?

  26. Does the [NOT FOR PUBLICATION] transcript so that allegations about the applicant would disclosed and used for a purpose unrelated to the bullying and harassment complaint of [NOT FOR PUBLICATION] and [NOT FOR PUBLICATION]?

  27. Did the respondent gain the applicant’s express consent to use the personal information about the applicant in the FACS Letter in the OWR investigation and disclosed the information directly to [NOT FOR PUBLICATION] and [NOT FOR PUBLICATION]?

  28. Did the respondent inform the applicant that the sensitive personal information in the FACS Letter would be disclosed to anyone when the respondent collected the FACS Letter?

  29. Did the respondent disclose the applicant sensitive information in the FACS Letter to OWR, Wise Workplace [NOT FOR PUBLICATION] without their consent?

  30. Did the respondent have any reason to believe that the applicant would have objected to this disclosure?

  31. Would the Tribunal Member intend to take any action under the PPIP Act towards the respondent if the applicant was subjected to the same situation as the applicant was?

  32. Is it appropriate and reasonable for a Tribunal Member to expect unrepresented members of the public to convince the Member of anything in their case?

  33. Can the Tribunal claim that the respondent’s conduct in the OWR investigation should be used as a good standards for any public sector agency including the Tribunal itself to follow?

  1. It is to be noted that many of those questions (for instance, questions (31) to (33) are of a theoretical and rhetorical nature and are neither appropriate nor necessary to answer.

  2. The applicant then submits that:

Council should apologise for its use and disclosures of very sensitive, inflammatory personal information about me without my knowledge or consent, whilst being fully aware that I would have objected to this.

Given the looseness or total disregard of which Council has applied the highlighted sections of its own PMP to my sensitive personal information, and Council's stubborn refusal to take any action in response to my privacy complaint, I submit that it is appropriate for Council to be subjected to a comprehensive performance review of the highlighted sections in its PMP. This order can be made under s. 55 (2)(c,g) of the PPIP Act.

  1. The applicant then makes submissions about the [NOT FOR PUBLICATION]

  2. Finally, the applicant then refines the relief sought.

Preliminary matters

  1. I commence by making some preliminary remarks about my obligations to refer to evidence and submissions.

  2. I also wish to discuss briefly the respondent’s submission summarised at [16] relating to the doctrines of precedent and stare decisis.

Factual findings

  1. The task of the Tribunal is to make relevant findings of fact. I emphasise the word “relevant”. As the Appeal Panel stated in EMF v Cessnock City Council [2021] NSWCATAP 234 at [31]:

…in Liang v University of Technology, Sydney [2018] NSWCATAP 285, the Appeal Panel stated it is not necessary to make findings on every argument or every submission, particularly where the arguments advanced are numerous and of varying significance, and are often unsupported by any evidence at all, and we have not done so: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443. This is particularly so where, as is the case here, the submissions are voluminous and lack substance. We do not propose to make findings on every argument or every submission.

  1. Accordingly, I do not propose to make findings on every argument or every submission.

  2. In Gussoni v Burnheim [2018] NSWCATAP 75 at [32] the Appeal Panel referred with approval to the statement of Samuels JA in Mifsud v Campbell (1991) 21 NSWLR 725 at 728, referring to McHugh JA in Soulmezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281, who noted that a failure to explain the basis of a crucial finding of fact involved a breach of the principle that justice must not only be done but must be seen to be done. His Honour went on to state that:

… it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case.

(emphasis added)

  1. See too the remarks of Meagher JA in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443 - 444 (citations omitted):

… reasons need not necessarily be lengthy or elaborate ... The scope of the reasons to be given is ... related “… to the function to be served by the giving of reasons”. Accordingly, the content of the obligation is not the same for every judicial decision. No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered.

(emphasis added)

Submissions

  1. A similar principle is applicable to the applicant’s (voluminous) submissions. The Tribunal is not required to make findings on every argument or every submission advanced before it and to record those findings and submissions in its reasons for decision: EMF at [32].

Precedent

  1. In Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186, the Appeal Panel stated at [190] that it is not necessarily correct to say that the Tribunal is not bound by the doctrine of precedent. At [191] the Appeal Panel then stated:

A number of relevant propositions can be derived from the High Court’s decision in Babaniaris v Lutony Fashions Pty Ltd [1987] HCA 19, (1987) 163 CLR 1 in this regard:

(1)   Whether the doctrine of precedent or stare decisis is capable of applying to a decision of a tribunal depends on the functions of the tribunal under the Act by which it was created – Babaniaris at 11 and see also at 31;

(2)   The doctrine may apply even though the Act by which the tribunal was created does not explicitly recognise that the tribunal has the status of a court - Babaniaris at 12;

(3)   The doctrine of stare decisis applies to decisions of tribunals which exercise judicial power, in the sense referred to, for example, by Kitto J in The Queen v Trade Practices Tribunal; Ex Parte Tasmanian Breweries Pty Ltd [1970] HCA 8; 123 CLR 361 at 374 - 5 - Babaniaris at 12 and see also at 31–32.

  1. As the Appeal Panel further noted, matters in the Administrative and Equal Opportunity Division involve the exercise of executive rather than judicial power.

  2. Accordingly, I regard the respondent’s submission that I am not strictly bound to accept or follow the Tribunal’s decision in FHY v Cumberland City Council; FGJ v Cumberland City Council [2024] NSWCATAD 92.

  3. Nevertheless, as for the factual findings in FHY however, I see no reason why, in circumstances where the Tribunal has previously made findings in two applications brought by the applicant against the respondent, on the same issues and subject matter, and after a contested hearing, I should not make the same factual findings, particularly in circumstances where I understand that substantially the same evidence is before me. An exception to this approach will be if I am satisfied that the evidence before the Tribunal in FHY did not establish the factual findings of the Tribunal.

  4. By and large, I will be making factual findings in terms of the findings in FHY but, depending on the facts ultimately found to exercise the Tribunal’s discretion to grant the relief sought.

  5. As it transpires the FHY decision is a very careful and detailed decision, of some 184 paragraphs. The Presiding Senior Member made several sympathetic observations about the applicant and their application (including but not limited to observing at [5] that “[there can be no doubt on the evidence before me that the [applicant has been through a terrible ordeal”). The Presiding Senior Member made many findings which supported the applicant’s complaints and their general position.

  6. The applicant asked me to not refer to FHY as they concerned that that would enable people to identify the applicant.

  1. I have difficulty in accepting that submission, as the Tribunal’s decisions are a matter of public record.

  2. Therefore, I proposed in the first instance to publish these reasons for decision only to the parties, and allow the applicant, and the respondent for that matter, the opportunity to seek redaction of these reasons, or to make some other application such as not publishing these reasons on NSW Caselaw.

  3. I note that on or about 29 April 2024, the applicant filed an appeal in respect of FHY.

  4. This version of my reasons follow quite extensive submissions from both parties as to redactions or amendments to the previously circulated decisions.

Factual findings

  1. All that said, I make the following relevant findings of fact.

  2. The applicant has worked in children and youth services in a variety of roles for more than 17 years. 

  3. Between April 2016 up to 16 December 2016, the applicant was employed on a casual basis as a [NOT FOR PUBLICATION] .

  4. At all material times, the applicant held a Working with ‘Children Check Clearance (WWCCC) issued under the provisions of the Child Protection (Working with Children) Act 2012 (NSW).

  5. At the material time for this dispute, [NOT FOR PUBLICATION] was the respondent’s Group Manager, Childrens Services. [NOT FOR PUBLICATION] was the respondent’s Business Administration Facilitator. [NOT FOR PUBLICATION] was the respondent’s Group Leader Human Resources. [NOT FOR PUBLICATION] was a co-worker with the applicant at the OOSH Service. Mr Taylor was the respondent’s Manager, Executive Support.

  6. On or about 7 October 2016, while the applicant was working at [NOT FOR PUBLICATION],  they received a telephone call from [NOT FOR PUBLICATION] notifying them that the respondent had received information alleging that the applicant had engaged in inappropriate conduct towards children and that the applicant was to leave work immediately pending the investigation of that allegation. It later transpired that these allegations had been made by [NOT FOR PUBLICATION].

  7. By an undated letter to the applicant received by the applicant on or about 7 October 2016, the then General Manager of the respondent wrote to the applicant to notify that the respondent had convened a meeting on 12 October 2016 that the applicant was required to attend to discuss an “allegation made against the applicnt in relation to inappropriate physical contact with children”. The applicant was notified that this meeting would be ‘facilitated’ by [NOT FOR PUBLICATION] and [NOT FOR PUBLICATION].

  8. At the meeting, there was a discussion of 4 allegations of conduct involving children, 3 of which involved some form of physical conduct with children which the respondent’s representatives considered inappropriate. Minutes of the meeting were produced on or about 18 October 2016

  9. By letter dated 17 October 2016, the respondent’s General Manager confirmed the outcomes of the 12 October 2016 meeting. That letter sets out the applicant’s alleged inappropriate conduct, the applicant’s response to those allegations, the actions the respondent required of the applicant, and the support the respondent would offer the applicant to improve their performance.

  10. The applicant resumed their duties as Acting Director of [NOT FOR PUBLICATION] on 18 October 2016.

  11. Following receipt of the minutes and the respondent’s letter of 17 October 2016, on 18 October the applicant corresponded with [NOT FOR PUBLICATION] and [NOT FOR PUBLICATION] expressing concern about the level of detail [NOT FOR PUBLICATION] had been provided in relation to the incidents of alleged inappropriate behaviour and that the issues had not been raised with the applicant first in accordance with the procedure specified in the respondent’s grievance policy.

  12. A ‘”follow-up meeting” between the applicant, [NOT FOR PUBLICATION] and [NOT FOR PUBLICATION] which had originally been scheduled for 20 November 2016 was conducted on 15 December 2016. At that meeting, [NOT FOR PUBLICATION] and [NOT FOR PUBLICATION] advised the applicant that further complaints had been received about the applicant’s interactions with children.

  13. A written summary of the meeting was recorded by [NOT FOR PUBLICATION] and [NOT FOR PUBLICATION] in the form of “notes/record of meeting”. Beside the heading “topic” are the words “child protection allegation – follow-up meeting”. The further allegations are set out, along with the applicant’s responses to them. The notes then go on to state the following:

[NOT FOR PUBLICATION] advised [the applicant] that [the applicant] needed to be very careful about the things [the applicant] says in front of staff, parents and children, [the applicant] needs to be professional at all times and that things [the applicant] may say at home, should not be said at work in front of children. [NOT FOR PUBLICATION] said that [the applicant] needs to be aware of the things being said, as [the applicant] may not mean for something to be taken a certain way, but [the applicant] cannot assume how someone else is going to feel about [the applicant’s] comments and actions.

…

[NOT FOR PUBLICATION] reassured [the applicant] that the notifications that have been made have only been given to her and are not discussed throughout the group. [NOT FOR PUBLICATION] said [NOT FOR PUBLICATION] and herself have maintained confidentiality regarding the whole investigation.

…

[NOT FOR PUBLICATION] explained to [the applicant] that as there had been several incidences reported recently and there appeared to be a pattern of behaviour that we would request that [the applicant] return to the casual list from 30 January 2017. [the applicant’s] performance will continue to be monitored whilst on the casual list. [NOT FOR PUBLICATION] confirmed with [the applicant] that [the applicant] requested not to work during the Dec/Jan School Holiday period.

  1. Following this meeting, the applicant corresponded with [NOT FOR PUBLICATION] and [NOT FOR PUBLICATION] by email expressing concerns about the ‘topic’ heading recorded on the ‘notes/record of meeting’, that the complaints had not been raised with the applicant directly at the time of the alleged incidents, and about the applicant’s removal to the ‘casual list’ from the role of Acting Director of [NOT FOR PUBLICATION] .

  2. By email dated 18 January 2017, [NOT FOR PUBLICATION] responded to the applicant’s email as follows:

The incidences raised by staff were not allegations, they were concerns that were raised to me. We received concerns raised by staff at different times, and then Guiding Principles and the Code of Conduct is used to discuss, develop and remind staff of their professionalism and expected behaviour. This can be completed with Centre Directors or anyone from the Children’s Services Senior Admin Team.

As issues were previously raised with you, [NOT FOR PUBLICATION] and I mentioned the concerns to you in the follow-up meeting.

As discussed in the meeting, the decision to no longer higher grade duty/pay you into the position of [NOT FOR PUBLICATION] was not based on the issues raised, the decision was based on the return of [NOT FOR PUBLICATION] from maternity leave.

Staff have informed me that at times they did express concerns to you directly … [one incident] was observed from a distance and therefore the staff did not address the issue with you directly – however as an [NOT FOR PUBLICATION] it would be expected that your manner would be professional at all times.

  1. The applicant did not accept [NOT FOR PUBLICATION]’s response. The applicant emailed her again expressing concern that the 15 December 2016 meeting notes/record of meeting referred to ‘child protection allegations’, whereas her 18 January 2017 email stated that these matters were not allegations, but ‘concerns’, denying any discussion about the applicant needing to return to the casual pool due to Director level staff returning from maternity leave, and asking for further details about the complaints. The applicant elaborated on and extended these complaints in a letter to [NOT FOR PUBLICATION] and [NOT FOR PUBLICATION]  dated 30 January 2017.

  2. That letter led to the respondent initiating a meeting between [NOT FOR PUBLICATION], [NOT FOR PUBLICATION] and the applicant on 10 February 2017. The applicant prepared what the applicant describes as a ‘transcript of that meeting. I note that in the applicant’s materials the applicant emphasises the following passages:

21   I said that I didn't recall most of the complaints, but did concede to the few complaints which I recalled and some that were misinformed.

(NOTE: I did ask for additional specific information in writing several times in order to recall the complaints, but this information has not been provided.

Due to the lack of specific responses to my questions, it is difficult to tell if these alleged incidents were serious or not. Therefore, I wasn't sure if I was responding to a serious issue or a trivial one)

…

36   In response to [NOT FOR PUBLICATION]’s comment that I had not taken advice on board and continue to 'display inappropriate behaviour', I advised [NOT FOR PUBLICATION] that I had not displayed the same behaviour twice. The allegations from the first complaint — tickling, children sitting on lap etc. had not been repeated.

37   I don't understand why [NOT FOR PUBLICATION] said I had not taken advice on board.

…

45   I said I like working for Cumberland, but I didn't apply for the [NOT FOR PUBLICATION] r position advertised on 23rd December because I didn't want to return to an environment where the same thing can keep happening.

46   I said to the ladies, 'Why would I put myself in a position where I would continually get harassed over these things? I need to protect myself from harmful allegations.'

  1. At the applicant’s request, the applicant met with the respondent’s Director of Human Resources on 14 February 2017 to discuss their concerns about the management of their employment by [NOT FOR PUBLICATION] and [NOT FOR PUBLICATION].

  2. By letter from [NOT FOR PUBLICATION] dated 22 February 2017, the respondent sought to confirm the outcome of the 10 February 2017 meeting from its perspective. That letter includes the following statements:

The meeting was held at your request to clarify the status of your employment and the work performance issues that had been raised. As you were advised, your employment with Cumberland Council is a casual position and therefore you will only be contacted for work if our resourcing requirements deem this necessary. As outlined to you during this meeting, due to the return of a number of employees from maternity leave, at this stage, we do not have any vacant shifts to offer you.

…

In addition to the position [NOT FOR PUBLICATION] ] no longer being vacant, there was a pattern of inappropriate behaviour and an allegation of reportable conduct that was investigated and found to be unsubstantiated. The investigation found that your comments and actions in some cases were inappropriate, but we felt that we could continue to monitor your performance as a casual employee.

During this meeting, you requested further more detailed information about the inappropriate comments and actions. It was explained that you had already been given the minutes to each of the meetings and that no further detail would be provided. This decision was also made in view of the fact that your employment with Council was unlikely to continue in the short to medium term because we are filling vacant shifts with permanent part time staff. As discussed these positions were advertised. Some of the issues you raised during this meeting would have been revisited if it were likely that your employment was going to continue, but since this was not the case, these discussions seemed futile and unnecessary.

It has been reported that after this meeting you contacted a number of Centre Directors and also visited a Council centre. The staff involved have reported that you contacted them asking about the possibility of ongoing work with council and whether or not casual shifts would be available to you in the near future. Please be advised that you are not to contact the Centre Directors or other staff at Council’s children’s centres again in the future. Also, you are not permitted to visit council’s children’s centres unless you are contacted regarding your availability for further casual shifts. If work is available for you in the future, the Centre Directors will contact you to discuss this. Your work performance will be monitored and reviewed depending upon the availability of casual work.

You also met with [NOT FOR PUBLICATION] , Manager Human Resource Services, and requested a letter indicating that the investigation was finalised and also a statement of service. The statement of service has been sent to you and I can confirm, as stated in our meeting, that the investigation into the allegations was found to be unsubstantiated and there was no notifiable conduct proven. The investigation into the inappropriate behaviour found that your comments and actions in some cases were inappropriate but we felt that we could continue to monitor your performance as a casual employee.

Further, at the meeting with [NOT FOR PUBLICATION] you requested that:

You would like to leave the centre on a positive note with a farewell with kids and parents; as you are still on the casual list a farewell is not required, as you may return for further shifts in the future.

The initial meeting title, change from Child Protection Allegation - Follow up meeting to Work Concerns; as the meeting was a follow up to the allegation that was investigated the title remains the same.

You want to understand why it was a mistake that you were the 'nominated supervisor'; it is not clear what you mean as you were the nominated supervisor.

You want the details on the parent complaint mentioned in the recent meeting so you know what not to do in the future; the parent complaint was documented in the minutes of the staff meeting held on 22 September 2016.

…

(italics as in original; underlined passages emphasised by the applicant)

  1. On 24 February 2017, the applicant wrote to [NOT FOR PUBLICATION] by email setting out several objections to the statements made by [NOT FOR PUBLICATION] in her letter dated 22 February 2017. The applicant expressed the view that they had grounds to make an official complaint of workplace harassment and or bullying by [NOT FOR PUBLICATION] and [NOT FOR PUBLICATION] . In response to that email [NOT FOR PUBLICATION] invited the applicant to submit to her any questions the applicant had regarding the management of the conduct complaints that had been made against them and their employment which she would pass on to [NOT FOR PUBLICATION] for response.

  2. In the applicant’s materials, the applicant emphasised the following passages:

Additionally, I had previously stated in writing that I would consider these ongoing false and vexatious complaints made directly to [NOT FOR PUBLICATION] harassment and I wish them to stop as per the grievance procedure policy.

…

No one has offered any appropriate or professional responses to the simple, specific additional information I have requested numerous times in writing since December last year. [NOT FOR PUBLICATION] has only just now refused to respond to my requests and labels my requests for additional information 'futile and unnecessary'!

  1. On or about 5 March 2023, the applicant provided [NOT FOR PUBLICATION] with a 6 page letter setting out questions and objections in relation to the management of the conduct complaints and their employment on 5 March 2017. In their materials, the applicant emphasised the following passages:

As discussed previously with you, each time I attempt to communicate and clarify something with [[NOT FOR PUBLICATION]], her answers (or lack thereof) raises even more questions. Additionally, my seeking clarification in the past has not helped resolve issues, but brought up a defensiveness for [NOT FOR PUBLICATION] and made it harder for her to respond to me with a level-headed, helpful attitude and professional courtesy.

…

Questions raised from [[NOT FOR PUBLICATION]’s] letter:

1   Please identify what the 'allegation of reportable conduct' was as mentioned in [NOT FOR PUBLICATION]’s letter.

…

[NOT FOR PUBLICATION] has misunderstood my request to change the title of the meeting in the meeting minutes — which I clearly explained in my letter to her 30th January.

The allegation that was investigated is NOT 'Child Protection' related —the allegations were only that of 'Work Concerns.'

Put simply: the title 'Child Protection' is exaggerated.
The title should reflect the topic — 'Work Concerns'.

'Work Concerns' is how the General Manager, [NOT FOR PUBLICATION] , describes the exact same incidents. (In his letter to me 17th October, 2016)

Why should the title of the meeting minutes be different to the GM's letter when they describe the exact same incidents?

…

Each time I try to clarify and understand work concerns that have been raised against me, it is met with defensiveness, apprehensiveness and blocks put up to hinder my work ability and performance.

  1. [NOT FOR PUBLICATION] provided that letter to [NOT FOR PUBLICATION] for response as agreed.

  2. [NOT FOR PUBLICATION] replied to the applicant’s letter of 5 March 2017 in an 11 page letter dated 19 March 2017. The letter includes the following statements:

You raised the following questions:

1.   Please identify what the ‘allegation of reportable conduct’ was as mentioned in [[NOT FOR PUBLICATION]’s] letter.

A complaint was received alleging that you had positioned yourself with a child in an inappropriate way. This is an allegation of reportable conduct and it was investigated. You were notified on this complaint and given a right of reply.

…

5.   [NOT FOR PUBLICATION] states that she has decided not to offer additional information requested [about the conduct complaints] as ‘my employment with Council was unlikely to continue in the short to medium term…’

…

-    Why is [NOT FOR PUBLICATION] using my current working situation as a reason not to resolve these complaints raised by Ms K

…

-   Is [NOT FOR PUBLICATION]  saying that since I am not working anyway, I don’t need to understand why [NOT FOR PUBLICATION] was complaining about me?

There were a number of complaints, all have been addressed with you and from council’s perspective, none of these complaints remain unresolved.

-   Is [NOT FOR PUBLICATION]  saying that since I am not working I don’t need to know that strategies are being put in place to ensure these false complaints aren’t going to be dealt with appropriately now or in the future?

Cumberland Council has policies and procedures that cover all employees the complaints against you have been investigated and at this time have been unsubstantiated but with the pattern of behaviour that you are presenting there is concern…

…

MOVING FORWARD

…

5.   Please advise what the appropriate process is to make a complaint – considering [NOT FOR PUBLICATION] has already participated defensively in this debacle and has shown conflict of interest in resolving it objectively.

From council’s perspective, the Group Manager Human Resources has provided you with the information you requested and has responded adequately to the concerns you have raised. Whilst you might not be in agreement with the response, [NOT FOR PUBLICATION]’s role is to provide you with objective information about your particular circumstances. This has now been provided to you on a number of occasions, and so as far as council is concerned, this matter is now resolved. There is no further information and no different responses that council can provide you with.

…

In view of all of this Council will not be responding to any further complaints you raise in relation to matters already addressed.

(underlined passages emphasised by the applicant)

  1. Following receipt of [NOT FOR PUBLICATION]’s letter of 19 March 2017, by 17 page letter dated 30 March 2017 sent by email dated 4 April 2017, the applicant wrote to the respondent’s General Manager to lodge a complaint alleging that [NOT FOR PUBLICATION] and [NOT FOR PUBLICATION] had engaged in bullying and harassment of the applicant during their employment. 

  • [NOT FOR PUBLICATION] took no steps to ensure the FACS Letter was 'relevant' and 'not excessive' to the O'Connell Groups investigation into [NOT FOR PUBLICATION] and [NOT FOR PUBLICATION]'s conduct, because it is not relevant, and was excessive for that purpose;

  • the collection and use of the FACS Letter was 'excessive' to any lawful or logical purpose.

  1. The applicant alleges a breach of the IIP set out in s 11(b) in summary as follows:

344   In [86] O'Connell makes findings against me that "appear to constitute unprofessional behaviour."

345   Without asking for my response to the 'towel head' allegation, O'Connell says it "appears" that I remain oblivious to the "serious offence such a comment could cause in such a multicultural area."

346   In [86] O'Connell attributes the fact I requested a farewell party; and the allegation that I photoshopped an image of staff heads on Baywatch actors (for use in a staff-only event) to be evidence that I have a “lack of self awareness in critical areas of [my] work performance”.

347   In [88] the report claims I am: "but a "simple country [NOT FOR PUBLICATION]" when confronted about my behaviour and inappropriate comments."

348   It is unclear where O'Connell collected this information from, or what relevance it is to anything, but O'Connell (unironically) concludes the paragraph with: "permanent exclusion from employment at Council appears the only viable option to deal with the situation [the applicant] has created for [them]self."

349   You could not make this garbage up. The Report reads like a satirical witch-hunt, but it was not intended to be ironic.

350   It is evident O'Connell was really trying hard to make me seem like the villain in this report — it has nothing balanced to say about me at all.

350   I would assume that there are more unbalanced comments and considerations that O'Connell has made regarding me in the redacted paragraphs of 93— 102 and 105 -114.

351   Given the final outcome, I would assume the redacted parts of O'Connell's Reports contain some kind of explanation on how O'Connell managed to reach the conclusion! recommendation of making a finding of 'sustained sexual misconduct.'

352   I would assume that the primary reason it is redacted is because it's use of my personal information was riddled with "various flaws' as the NSW Ombudsman found in its review.110

  1. The applicant alleges a breach of the IIP found in s 12(a). The applicant submits that the respondent had no lawful reason in continuing to collect and hold their personal information because:

  • the NSW Ombudsman's jurisdiction on overseeing reportable allegations was limited to oversee allegations against a current employee;

  • the respondent had no logical or lawful reason to investigate a former employee and included false information that the applicant was a 'casual employee' in July 2017 when it filled out the NSW Ombudsman's Notification Form Part A;

  • [NOT FOR PUBLICATION] told FACS that the applicant was no longer an employee;

  • FACS informed the respondent that neither FACS nor the Council needed to do anything further in response to the FACS Letter.

  • the respondent should have disposed of the unsolicited letter in accordance with IPP 12(b) as it had no purpose in using it;

  • after the applicant ceased work at respondent in December 2016, the investigation of the applicant’s personal information bore no tangibly beneficial outcome for anyone;

  • the respondent’s findings were overturned by the NSW Ombudsman anyway.

  1. As to the IIPs found in ss 12(c) and (d), the applicant submits:

  • the respondent had an obligation to ensure the contents of the FACS OWG disclosed the contents of the FACS Letter to [NOT FOR PUBLICATION] without authorisation from anyone;

  • the FACS Letter was unsolicited, and it was unreasonable for Council to disclose 'unsolicited' material from FACS to whomever it pleases;

  • there was no authorisation from the author of the OOSH Report to disclose;

  • it was unreasonable for the respondent to use and disclose sensitive child-protection allegations from an unknown, unverifiable source to third parties such as OWG and its staff, such as [NOT FOR PUBLICATION];

  • the applicant did not authorise the respondent to allow OWG to access, use or misuse the personal information about the applicant contained within the FACS Letter;

  • there was no authorisation from any agency to use the FACS Letter.

Breaches of the IIPs found in ss 13 and 14

  1. As noted, in the applicant’s Privacy Review Application the applicant stated:

13(b), 13(c(l,i,iii)) As far as the personal information gathered/ held in that investigation, Council took 'no steps to enable me to ascertain the nature of the information, the main purposes for which it was used and my entitlement to gain access to the information.

  1. In relation to the IIP found in s 13, the applicant submits:

217   I have provided sufficient evidence to the Tribunal to clearly demonstrate the following circumstances apply;

a.   I had extensively and repeatedly requested specific details and the context of the allegations levelled towards my work at Council which enlivened Council's obligations under IPP 13,

b.   the information Council held, used and disclosed, would knowingly have an imminently severe impact on my personal affairs. It was reasonable in the circumstances for Council to take active steps to inform me of the precise information it held, and its intended use, before making findings of 'sustained sexual misconduct.'

c.   Council repeatedly and intentionally withheld the 'sexualised' context of the allegations made against me and its use of that material in the O'Connell Group investigations.

d.   When I explicitly asked [NOT FOR PUBLICATION] "did you instruct O'Connell Group to investigate me?" he eventually insinuated that the investigation was only regarding my complaint of 30 March 2017.

e.   Council failed to inform me that it had submitted material regarding me to the OCG on "28 August 2017" and Notification Forms containing findings of 'sexual misconduct' to the NSW Ombudsman and OCG that would (by law) trigger an interim bar.

218   In these circumstances it was 'reasonable' for Council to have a positive obligation to comply with IPP 13 and advise me that it held additional complaints about me, the nature of those complaints and whether I had any entitlement to access that information.

219   When Council chose to 'use' the FACS Letter and collect allegations about me from [NOT FOR PUBLICATION], Council should have informed me that it:

a.   had newly acquired and 'held' the FACS Letter containing my personal information,

b.   the letter contained detrimental, serious, sensitive and misleading allegations about me,

c.   that it was provided to the O'Connell Group

d.   the intended purpose of why O'Connell Group were 'using' it, For example, to make detrimental findings against me! absolve [NOT FOR PUBLICATION].

e.   that the personal information contained within the FACS Letter would be disclosed to [NOT FOR PUBLICATION] ,

f.   the purposes it would be disclosed to [NOT FOR PUBLICATION],

g.   whether I had any entitlement to gain access to the information contained within the FACS Letter, or the allegations it collected from [NOT FOR PUBLICATION] in her interview.

h.   Used the information to inform its notification Forms A and B, the 'nature' of those forms, and whether I had any entitlement to access those forms.

220   Council's neglect in doing all this breached IPP 13.

  1. In relation breaches of the IIP found in s 14, the applicant simply submits “the above” is evidence that the respondent failed to provide them with access to numerous items of their personal information it held after the applicant repeatedly asked for it and, in doing so, breached IIP 14.

Breaches of the IIP found in s 16

  1. As noted in [3], in their Privacy Review Application the applicant stated:

16 l allege Council did not check the relevance, accuracy or completeness etc. of the information collected by [NOT FOR PUBLICATION] before use.

  1. In summary, the applicant submits that the respondent and the OWR failed to check with the following people whether the information in the OWR Report was “accurate, up-to-date, complete and not misleading” before use:

  • the applicant;

  • the FACS complainant;

  • any children, and/or

  • any family members of children.

The respondent’s submissions

  1. The respondent’s submissions are sufficiently summarised above.

Consideration

  1. As in FYN, the personal information that is in issue in these administrative reviews is:

  1. the applicant’s name;

  2. the applicant’s connection with the respondent as an employee and former employee;

  3. the fact that the applicant was the subject of misconduct complaints while in the employ of the respondent in 2016, which were investigated at that time;

  4. the fact that the applicant was the subject of a risk of significant harm report made to the NSW Child Protection Hotline in April 2017;

  5. the fact that the applicant was the subject of a report from Auburn Community Services to the Director of the OOSH Service in April 2017 as a result of that risk of harm report;

  1. The complaints of breaches of IIPs found in ss 11, 12, 13, 14 and 16 are sufficiently summarised above. I will consider each in turn.

Breach of the IIP found in s 11

  1. For the purposes of the PPIP Act, personal information is not collected by a public sector agency if the receipt of the information by the agency is unsolicited: PPIP Act, s 4(5).

  2. As the Appeal Panel stated in in Vice-Chancellor, Macquarie University v FM [2003] NSWADTAP 43 at [86] an Appeal Panel stated at [86]:

… As we conceive of the term ‘unsolicited’ it refers to information that an agency finds itself receiving (primary meaning, Macquarie Dictionary, ‘not asked for’). A public sector agency is not bound by the Collection principles in that situation as it had no opportunity to define or set the parameters under which it was received…

  1. There is no direct evidence before me of who made the risk of significant harm report to the NSW Child Protection Hotline, although there is circumstantial evidence, a fact noted in FHY at [157] as being “suspicious”. Nevertheless, I cannot conclude on the balance of probabilities that the notifier was acting on behalf of the respondent to effectively solicit the FACS Letter.

  2. Accordingly, the I find that the FACS Letter was unsolicited and the IIP found in s 11 of the PPIP Act is not engaged and therefore no contravention established.

  3. I would take no further action in relation to this issue.

Breach of the IIP found in s 12

  1. The respondent contends, and I accept, that a breach of the IIP found in s 12 was never referred to by the applicant in the Privacy Review Application, that the Original Decision therefore never considered the s 12 IIP, and that there is nothing for the Tribunal to review in the present application.

  2. I agree; alleged breaches of s 12 are beyond the scope of the Tribunal’s functions in this review.

  3. In those circumstances, I would take no further action in relation to this issue.

Breach of the IIP found in s 13   

  1. The applicant stated in the Privacy Review Application that:

13(b), 13(c(l,i,iii)) As far as the personal information gathered/ held in that investigation, Council took 'no steps to enable me to ascertain the nature of the information, the main purposes for which it was used and my entitlement to gain access to the information.

  1. These matters are amplified in the applicant’s submissions as summarised above.

  2. The respondent submits, in reference to the 28 examples the applicant gives as evidence of request for information, none of the examples relate to the conduct under review, namely the collection of information from [NOT FOR PUBLICATION] at the interview on 5 May 2017, and that no request is framed as an enquiry under s 13 of the PPIP Act.

  3. The respondent then submits that the applicant’s grievances about asserted shortcomings of the respondent’s investigation is not a matter open to the Tribunal to review on the present application.

  4. I accept these submissions as correct.

  5. In those circumstances, I would take no further action in relation to this issue.

Breach of the IIP found in s 14

  1. The respondent contends, and I accept, that a breach of the IIP found in s 14 was never referred to by the applicant in the Privacy Review Application, that the Original Decision therefore never considered the IIP found in s 14, and that there is nothing for the Tribunal to review in the present application.

  2. I agree; the alleged breaches of s 14 are beyond the scope of the Tribunal’s functions in this review.

  3. In those circumstances, I would take no further action in relation to this issue.

Breach of the IIP found in s 16

  1. As I have set out above, in the Privacy Review Application the applicant stated that the respondent “did not check the relevance, accuracy or completeness etc of the information collected by [NOT FOR PUBLICATION] before use”.

  2. That allegation was amplified in the applicant’s submissions which are summarised above.

  3. The respondent divides its submissions on this issue into two groups:

  1. s 16 as it relates to FACS Letter; and

  2. s 16 as it relates to [NOT FOR PUBLICATION].

  1. In relation to the first group, the respondent submits that:

  1. the applicant's submissions focus on the respondent collecting personal information from the FACS Letter and the FACS Letter containing inaccurate, incomplete, not up to date or misleading personal information about the applicant;

  2. proceedings No. 2021/356513 squarely dealt with the collection and use by the respondent of the FACS Letter including the letter containing inaccurate, incomplete, not up to date or misleading information;’

  3. it relies on the findings and outcome of FHY.

  1. In relation to the second group, the respondent submits that:

  1. the applicant’s submissions make oblique reference to the collection of personal information from [NOT FOR PUBLICATION] and the subsequent use of that information, but do not extend beyond bare bone assertions and are not supplemented by any evidence;

  2. the applicant’s assertion that the reason for the collection of personal information from [NOT FOR PUBLICATION] was to target the applicant is a baseless assertion unsupported by evidence. The evidence of Mr Jones would be preferred, namely that there were multiple references to [NOT FOR PUBLICATION] in the applicant’s bullying and harassment complaint and that to test and analyse that complaint, it making sense for OWG to interview a person who featured so prominently in the factual make up of the complaint;

  3. the applicant alludes to disclosure of inaccurate, incomplete and misleading information in the FACS Letter to [NOT FOR PUBLICATION]. No evidence is put forward in support of that assertion and in any event it is beyond the scope of the conduct being reviewed (that is, personal information collected from [NOT FOR PUBLICATION]).

  4. the applicant’s submission criticising the OWG investigation and its motives led to the respondent’s improper use of information in its notifications to the NSW Ombudsman, in breach of s 16, is unsupported by any corroborative evidence.

  1. In conclusion, the respondent submits:

50. At AS [154], [the applicant] submits that [they] has demonstrated various things as listed at subparagraphs (a) to (f) inclusive. In response to that submission and those sub-paragraphs, the respondent says:

50.1 There were two purposes to the O'Connell investigation, which relevantly included child protection, but which did not extent to targeting FRN.

50.2. The content of the FACS Letter has been separately litigated and is not the subject of this complaint.

50.3 [The applicant’s] submission of the collection of inaccurate, incomplete and misleading information from [NOT FOR PUBLICATION] is a bare assertion, unsupported by evidence.

50.4 Processes followed by Councill and the adequacy of its investigation of[the applicant’s] conduct are not the subject of this administrative review.

50.5 A point in time opinion of the NSW Ombudsman regarding “impossible" Council findings remains unexplained, are not under administrative review in these proceedings and are of neutral effect to the conduct being reviewed.

  1. I consider that there is substance in these submissions of the respondent.

  2. In those circumstances, I would take no further action in relation to this issue.

Other matters

Other sections of the PPIP Act

  1. The applicant made other references to other sections of the PPIP Act.

  2. As to any claim that there was a breach of s 8(1)(a), there was no probative evidence to support the applicant’s claims.

  3. As to a breach of s 17, there was no probative evidence to support the applicant’s claims.

  4. As to a breach of s 18, any breach of s 18 was never referred to by the applicant in the applicant’s Privacy Review Application, therefore the Original Decision never considered this issue, and that there is nothing for the Tribunal to review in the present application.

  5. In those circumstances, I would take no further action in relation to this issue.

Damages

  1. The final aspect to briefly consider is the applicant’s claim for compensation. All that needs to be stated is that as I am not persuaded that there has been any breach of the PPIP Act by the respondent, the question of compensation does not arise.

Conclusion

  1. For the above reasons, on this review application, I have decided to take no further action.

Orders

  1. The Tribunal orders:

  1. These reasons are not to be published on NSW Caselaw before 24 March 2025.

  2. The Tribunal will take no action on the matter.

  3. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the name of the applicant is prohibited. This includes a reference to any information, picture or other material that identifies the applicant or is likely to lead to the identification of the applicant.

  4. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the confidential material or matters contained in this material is prohibited.

  5. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the confidential material or matters contained in this material is restricted to the respondent and the Tribunal.

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Endnotes

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: 31 March 2025

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Cases Cited

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Statutory Material Cited

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AK v Western Australia [2008] HCA 8
AK v Western Australia [2008] HCA 8
DTN v Commissioner of Police [2022] NSWCATAD 134