FTN v NSW Ombudsman

[2023] NSWCATAD 319

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FTN v NSW Ombudsman [2023] NSWCATAD 319

Hearing dates:

21 November 2023

Date of orders:

21 November 2023

Decision date:

12 December 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

Matter no. 2023/00362924:

1. The General Application filed on 15 November 2023 is refused.

2. The Notice of Motion filed on 15 November 2023 is dismissed.

3. The applicant has informed the Tribunal that he intends to appeal against these decisions. On that basis, the Tribunal will publish written reasons within 28 days.

Matter no. 2023/00101979:

1. The Commissioner for Fair Trading is excused from further participation in the hearing of this application.

2. The hearing date of 21 November 2023 is vacated.

3. The proceeding is listed for directions on 12 December 2023 at a time to be fixed by the Registrar at John Maddison Tower, Level 10, 86-90 Goulburn Street, Sydney.

4. The costs for the hearing of 21 November 2023 are reserved.

Catchwords:

ADMINISTRATIVE LAW – administrative review – alleged breach of privacy – attempt to join parties as respondents prior to hearing by way of a General Application – application misconceived – No application for joinder - existing application cannot be heard “in conjunction” with proceedings against another party that have not yet commenced

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Competition and Consumer Act 2010 (Cth)

Fair Trading Act 1987 (NSW)

Ombudsman Act 1974 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:

None

Texts Cited:

None

Category:

Principal judgment

Parties:

FTN (Applicant)
NSW Ombudsman (Respondent)

Representation:

Solicitors:
Applicant (Self-represented)
Mr D Wong (Respondent)
Ms H Steel (in the interests of the Commissioner for Fair Trading)

File Number(s):

2023/00362924 & 2023/00101979

Publication restriction:

The publication or broadcast of the name of the applicant is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

REASONS FOR DECISION

Background

1. On 29 March 2023, FTN (the Applicant) filed an application for administrative review of certain conduct of concern of the Ombudsman NSW (the respondent) and “Privacy Commission NSW”. He alleged that the respondent “refused and failed to conduct the internal review about breached my privacy from Ombudsman NSW, malfunction, recklessness and withhold the public trust of the Ombudsman NSW, failed the role of the oversight of the internal review (Ombudsman) by the privacy commission NSW, malfunction to write the accurate report”.

Procedural matters

2. On 31 March 2023, Principal Member Simon ordered the matter to be listed for hearing on 24 April 2023. She ordered the applicant to provide the respondent and the Tribunal with any further submissions and material that he intends to rely upon by 13 April 2023 and the respondent to file and serve any submissions and material upon which intends to rely by 13 April 2023. The Principal Member noted, relevantly:

On 29 March 2023 the applicant filed an administrative review application form. The named respondents are the Ombudsman NSW and Privacy Commission NSW. It is unclear the jurisdiction that the Tribunal has in relation to the application or the administratively reviewable decision over which the applicant is seeking review. The applicant’s submissions will need to clearly identify the jurisdiction of the Tribunal to deal with the application and the administratively reviewable decision for which the applicant is seeking administrative review.

Parties are on notice that if the Tribunal cannot identify jurisdiction, the matter may be dismissed at the hearing on 24 April 2023.

3. On 24 April 2023, Senior Member McAteer conducted a Case Conference and Interim hearing, at which the applicant appeared in person and Ms Miller appeared for the respondent. After making an order pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), the Senior Member made the following orders:

1. By consent the NSW Ombudsman is to conduct an internal review in accordance with the request made by the applicant in August 2022;

2. The review is to completed and filed and served on the applicant, the Tribunal and the Privacy Commissioner by 22 May 2023;

3. The Privacy Commissioner is to provide any further submissions as to whether they are a proper party and should be removed under s 45 of the NCAT Act and/or file any application under s 55(1)(b) of the NCAT Act seeking to strike out the proceedings in so far as they concern the Privacy Commissioner as a party, by 13 June 2023. If filed, such an application is to be returnable at 2pm on 24 July 2023;

4. The applicant is to file and serve any submissions in reply to matters raised by the Privacy Commissioner by 4 July 2023; and

5. The matter is listed for interim order hearing/case conference on 24 July 2023 at 2pm.

4. At the Interim order hearing/case conference before Senior Member McAteer on 24 July 2023, the applicant appeared in person, Mr D Wong appeared for the respondent and Mr I Lewis appeared for the Privacy Commissioner. The Senior Member made the following orders:

1. Pursuant to s 44(2)(b) of the NCAT Act, the NSW Privacy Commissioner is removed as a party to these proceedings;

2. Pursuant to s 55(1)(b) of the NCAT Act, ground three of the administrative review of FTN filed 29 March 2023 is dismissed in so far as it seeks to review the conduct of the NSW Privacy Commissioner;

3. The respondent is to file and serve documents under s 58 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) by 14 August 2023;

4. The proceedings are adjourned for a further 30 minute case conference so that FTN may respond to the Internal Review received 22 May 2023 and orders can be made about the future conduct of the proceedings; and

5. The matter is listed for a case conference on 21 August 2023.

5. At the further case conference before Senior Member McAteer on 21 August 2023, the applicant appeared in person and Mr Wong appeared for the respondent. The Senior Member noted:

The parties note and agree that the scope of the Administrative Review of conduct is confined to the alleged breaches of the IPP’s outlined at sections 16, 17 and 18 of the PPIP Act as set out in the Internal Review, and noting that the respondent falls within the definition of Investigative Agency within the definitions contained within the PPIP Act.

6. The Senior Member ordered the applicant to file and serve any further evidence by 11 September 2023. He ordered the respondent to file and serve any further evidence by 3 October 2023. He ordered the applicant to file and serve a reply by 17 October 2023 and he listed the matter for hearing on 30 October 2023.

7. On 12 September 2023, Principal Member Simon amended the time for the applicant to file and serve any further evidence until 14 September 2023.

8. On 18 September 2023, the applicant filed an application for a summons to be issued to Mr Paul Miller for him to produce certain documents and to attend and give evidence,

9. The Registrar refused that application on 19 September 2023, on the basis that the documentation requested to be produced was not relevant to the privacy application.

10. On 22 September 2023, the applicant sent an email to the Registrar, which was in the following terms:

I am requesting the registrar relook about the decision (dated 19 Sep 2023), refusal of my applicant for Mr Miller to produce document. These are the systemic and cultural issues from both Fair Trading NSW and Ombudsman NSW have been evidently found by the Tribunal Member on 8 Feb 2020. It is this legal proceeding all about because both acting Ombudsman and Ombudsman Paul Miller himself have heavily involved the conspiracy and made themselves justified for unlawfully violated the privacy act NSW.

The key element of this dispute is that both Ombudsman claimed and justified to use, disclose and mislead the list of my complaints, to the Ministerial MP, Mr Bar, it resulted that Mr Bar made a comment that it is clearly to be misled by Ms Silver letter, Mr Barr note stated “investigate.. all complaints”. In fact, Mr Miller and all other Ombudsman officer has intimidated me by said that they have not investigate any of my complaints since 1996. It is obviously doublespeak evidently.

In relation to my request for Mr Miller (who sent me a letter (20 Nov 2020), demanded me to pay $808.50 for the ransom in regarding to the handling of my complaint about fair trading misconduct, plus banned me for 12 months to contact the Ombudsman NSW, it is classic of the systemic issues.

My key questions were (20 Nov 2020)

How Mr Miller came to this conclusion?

Why Mr Miller made this decision?

What the information available to justify Mr Miller sent me such legally fraud claims?

After setting out a table of dates and events, the applicant continued:

There is overwhelmingly evidence indicated that Mr Miller has heavily involved this misconduct, why we are in front of NCAT to find what was happening to lead up to this used, disclosed and misled by Mr Miller handled my complaint himself in this misconduct issue right now.

Therefore, the summons to request document from Mr Miller is crucial, as the above three crucial questions and all the evidence would be relevant, in the material time and facts to need to find the fact. The registrar may be made the decision without knowing and understand the above three crucial and relevant questions that it need to be answered before this court.

I would like to ask the registrar to revisit the application of the summon from Mr Miller.

11. On 20 September 2023, the applicant filed an application for summons to be issued to Lyn Wotton and Craig Rorie, based on the following submissions:

I am briefing about why I am making request Lyn Wotton and Craig Rorie attend to the court.

1) It started from the inspector, Craig Rorie (Fair Trading) who was the person visited ARA Trader before 2 July 2020. Later he and I had phone conversations, he confirmed that the ARA had no “job card” (it means that the ARA did not do any work on my engine).

2) Issue one – There was no agreement and no contract between trader and I, however, after I complained further within the fair trading, Lyn Wotton Senior Adviser was involved (please see the attachment) ALL VERBAL AGREEMENTS FROM WHAT I CAN SEE 9DATED 18 Aug 2020 and 11 Aug 2020), she had made up and fabricated story by saying “what I can see” when she was never visiting the trader, in another word, she was not there when I sent the engine to the trader. All of this would be the material relevant.

3) During that time, I made a complaint to the Ombudsman NSW about the Fair Trading biases and misconduct.

4) Issue two, suddenly the ARA produced this job estimate (dated 17 Au 2020) for %808.50 new charge, it would be obviously involved with Craig (he was the only person directly contacted with the trader ARA), and then soon after that Craig sent me the letter (dated 3:24pm 19 Aug 2020) to demand me to pay this amount.

5) Issue three – the fair trading commissioner, Rose Webb also requested me to pay for $808.50 (dated 24 Aug 2020)

6) Later the Acting Ombudsman Paul Miller (dated 20 Nov 2020) had joined with them, who was not only demanding me to pay this ransom, because there was no contract and no agreement and also order to return my engine in a week.

From the above fact, the fair trading has committed the aided, abetted, conspiracy, and accessories before, during and after the fact. This case was also used by Ombudsman NSW to justify breached my privacy, there would be outstanding issue back to the fair trading complaint by me, because I requested the inspector of the Fair Trading Craig to check where was the job card, but it ended up Craig supported the charged for $808.50 from the job estimate of the ARA engine repairer, and then about the same time, Lyn made up story by saying all verbal agreements from what I can see.

I do not know how the fair trading came to this conclusion without any evident, in relation to the Ombudsman NSW, Paul Miller, it is investigator agency, it supposed to investigate and find the evident, but why evident the ombudsman replied on in question function. This summons to both fair trading officer, it wants to find out from the bottom of what was wrong????

12. On 29 September 2023, the Registrar refused the application to issue summonses to Ms Wotton and Mr Rorie, on the basis that it was not evident how their evidence is relevant to the privacy application and, if the summonses were to be issued, a separate application would be required for each individual.

13. On 29 September 2023, the applicant sent a further email to the Registrar, in which he requested “the list of hearing in relation to the summons urgently”. He stated, relevantly:

I have made two requests for the summons, Paul Miller, for produce document (re-requested), fair trading, adviser and the inspector to attend to the hearing, however, there was no response.

I am asking for the list of the hearing to deal with this core issue, because the Ombudsman NSW has intentionally used, disclosed and misled my personal and private information, as their claims about unhappy in relation to my complaints since 1996, they have misused their position of power (as claimed for exemption against their actions, no any function of the investigation to perform since 1996).

Especially, they has mention in its submission and usage of Mr Miller previous letter in Aug 2023, in accordance with the common sense and the law, the citizen is required to report the crime, as well as the legal professional, also judiciary tribunals and judiciary officers, under our democratic system, for example, the recently Ben Roberts Smith defamation case before the Federal Court, the fining of the criminal conducts have been referred to the CDDP to investigate and prosecute accordingly.

Therefore I am urgently asking to set up the list of the hearing to let the court to determine these outstanding issues.

Please to consider of my request these two summonses and/or alternatively to list of the hearing…

14. On 23 October 2023, the applicant filed further applications for summonses to be issued to Mr Paul Miller (to attend and give evidence) and Ms Sanya Silver (to attend and give evidence and to produce documents). Both persons are officers of the respondent. He relied upon the following submissions:

Firstly, the reason to request Mr Paul Miller to attend the hearing is, because the internal review (ordered by the Tribunal member around March 2023) was conducted by Mr Miller and also the writer of the internal report was Mr Miller in April 2023, there are still many questions remaining in his report.

Secondly, the reason to request Ms Sanya Silver to produce documents and attended to the hearing, because this case was about, she breached my personal and private information unlawfully, the original case was about Mr Clayton Barr (MP) represented me in relation to the dispute amount TfNSW, Crown Land about the fencing line. Both parties refused to provide the evidence of the document, and then the ombudsman involve (dated 4 August 2020). Both claimed that the location (land) of the fencing line were their ownership of the land, but they refused to produce the evidence (such as the deed, and where was the boundary).

I requested both to show me the evidence where was the boundary such as the Title deed and/or boundary map, because I licensed this land and had a contract with the Local Land Service NSW to build up the land on the boundary line of the crown land (I paid half of the expense for this fencing line).

After I made a requested both, but both refused to produce this legal boundary on the title deed. Therefore, only an option left, I complained to the Ombudsman NSW in 2020. The Ombudsman NSW claimed that they contacted both, but there was no submission and any evidence to be provided. This would be crucial information to lead up to a breach of my privacy. I was frustrated of lack of competent from the Ombudsman NSW.

Finally, I made a request from my local MP, Mr Barr to represent me to the Ombudsman NSW for investigation, and key information would be where was it the title deed, and/or boundary may from both Crown Land NSW and TfNSW.

Ms Silver was the person response this matter in later 2021 and she was not only refusal (looking for it, but she also requested for my consent (requested by law) to let Mr Barr represent me to the Ombudsman NSW. After Ms Silver received my consent and was requested to respond to Mr Barr. Ms Silver would/should act/handled as requested from Mr Barr representation. The information in question was what her handling process and finding (if any) would be as her claim/justify with relevant Ombudsman submission, so support her later used, disclosed and misled of breached my privacy.

The ombudsman claimed that they had used, disclosed and during their handling of the complaint, therefore I requested to have all information about how the ombudsman handling before and during this unlawfully used, disclosed, and misled my personal and private information.

I greatly appreciate your time and attention.

15. On 26 October 2023, the Registrar refused the application to issue a summons to Mr Miller and Ms Silver, on the basis that the application did not address how their evidence is required for the application for review under the Privacy and Personal Information Protection Act 1998 (NSW) (PPIPA).

16. On 26 October 2023, the applicant sent an email to the Registrar in the following terms:

Re: Enquiry about my application for the summons.

Mr Paul Miller made the internal review (dated 18 May 2023) with 9 pages of his review document, there are some questions in this document need to be clarified.

In relation to Ms Sanya Silver, who was the centre of the breached my privacy, there were at least two my previously complaints, TAFE and Stock Agent (Fair Trading) was misled, used and disclosed directly by her, in fact, this was the private letter to Mr Clayton Barr (MP), also she mentioned over other 7 government agencies in her letter, all of these agencies involvements were not update, in another word, it was misleading, misused and unlawfully disclosed to other without any justification.

In addition, from ombudsman submission, in relation to my later complaint about TfNSW, the Ombudsman failed to identify for the centre issue “the boundary line would be legally for the fencing”, it indeed, mucked around as the the old dog bark the wrong tree. From the internal emailed it evidently was not only act in the wrong way, but she also approved for another restriction upon me, why, what the reasons, this was another pattern of the abuse power so there are many question that the public wants to know.

Therefore, I would like to ask you take seriously consideration for these two application, the hearing would be on 30 October 2023…

17. On 27 October 2023, the Registrar advised the applicant that his further application to issue summonses to Mr Miller and Ms Silver were not approved and that he could raise any issues regarding these summonses at the hearing on 3 October 2023.

18. However, on 30 October 2023, the applicant filed a General Application Form, in which he named the respondents as “Fair Trading NSW and Ombudsman NSW”, and he indicated that he sought the following orders:

Part 6 Enforcement and Remedies of the Fair Trading Act 1987 (NSW)

Division 7 – Enforcement and remedies – Competition and Consumer Act 2010 (Cth).

19. The General Application listed the following grounds:

S 10 liability not in good faith, misleading and deceptive conducts.

S 63 offence – (1)(a) contravenes… this Act, (c) aids… counsels, (d) directly, indirectly knowing, (f) conspires with others to. Of the Fair Trading Act 1987 (NSW)

S 44ZZD(3)(a)… abetted, counselled, (c) directly or indirectly knowingly (d) conspired with others of the Competition and Consumer Act 2010 (Cth)

S 16 misleading personal and private information, PPIP Act 1998 (NSW)

S 35A in the bad faith of the Ombudsman Act 1974.

20. The applicant also filed a Notice of Motion in matter 2023/00101979, which named the respondent as the First respondent and Fair Trading NSW as Second Respondent. He sought the following orders:

1. That pursuant to s 44(1) of the Civil and Administrative Tribunal Act 2013 (NSW), Mr Miller (Ombudsman NSW), Fair Trading, Ms Rose Webb, Ms Lyn Wotton and Mr Craig Rorie would be attending the hearing on 30 October 2023 as party to the proceedings;

2. In the alternative, that pursuant to s 51 of the Civil and Administrative Tribunal Act 2013 (NSW) the current proceedings against the NSW Ombudsman be adjourned.

21. As a result of the applicant filing this General Application, the Tribunal created a separate file – 2023/00362924.

22. On 31 October 2023, the Registrar advised the applicant and respondent that the applicant had filed the notice of motion, and stated, relevantly:

If the applicant seeks to have persons added as respondent then he must lodge a separate application for joinder form for each person he seeks to be added as a respondent.

It is noted that the substantive application is an administrative review of a privacy decision. The applicant will also need to provide submissions with the application for joinder clearly identifying the legal and factual basis on which the relevant person can be joined.

23. On 14 November 2023, Mr J McDonnell, Assistant Crown Solicitor, wrote to the Tribunal and the parties in the following terms:

I am instructed to act for Fair Trading NSW, Rose (not Ross) Webb, Lyn Wotton and Craig Rorie in relation to the applicant’s notice of motion filed on 30 October 2023 seeking their joinder pursuant to s 44 of the Civil and Administrative Tribunal Act 2013.

I understand that the application may be heard on 21 November 2023 as part of a privacy matter listed for hearing on that date and that the applicant has been required to file submissions in support of his application. I further understand that the applicant has previously in these proceedings unsuccessfully applied for summonses for the attendance of my clients.

Could you advise what, if any steps, my clients are required to take in relation to the application for joinder, including whether it is necessary for them to be heard by the filing of written submissions or otherwise.

24. On 15 November 2023, Deputy Registrar Skinner wrote to Mr McDonnell, advising that no joinder application has been lodged in relation to matter 2023/101979 and that no submissions were required.

25. On 15 November 2023, Principal Member Simon advised the parties that the General Application (2023/00362924) and the Notice of Motion were listed for directions at 10 am on 21 November 2023, and that they were to be heard at the same time as matter 2023/00101979.

The hearing

26. The matter came before me for hearing on 21 November 2023. The applicant appeared in person, Mr D Wong appeared for the respondent and Ms H Steel appeared in the interests of the Commissioner for Fair Trading.

Interlocutory matters

27. I decided to deal with the General Application and Notice of Motion before commencing a determination of the administrative review application (2023/101979).

Applicant’s submissions

28. I referred to the Notice of Motion and advised the applicant that it was unclear whether or not any decision had been made by the Commissioner for Fair Trading, because if no decision has been made, I do not understand the basis on which he asserts that the Tribunal has jurisdiction to join them to the proceedings.

29. The applicant stated that he filed two notices of motion. One was “joining the party”, but he then received a letter from the Registrar. He stated:

…Yeah, alright, I direct respond. I didn't make a request. To the Fair Trading. Because I tried to file during party. Relate with another matter, but they relate with Ombudsman, the (illegible) party. When I try to fill out the (illegible) in another time, say the Fair Trading have make any internal review. So I sent the e-mail direct to the Fair Trading. I request them conduct the internal review and I gave them day is, I think last Wednesday or the week before Wednesday, but they reply on the Tuesday, they not intend to do any internal review. So the Wednesday I filed the general application to the to the (illegible) that include the Ombudsman. So I didn't make a request for internal review from the Fair Trading in relation to the conduct with the ARA auto repair, but they never respond say they will make any internal review or not.

30. I advised the applicant that based on what he just told me, he would need to commence separate proceedings against the Commissioner for Fair Trading and that the Commissioner could not be joined as a party to the proceedings against the Ombudsman. A lengthy exchange followed:

Applicant: The the case relate with Fair Trading actually like the case I'm I'm I make a complaint to Ombudsman Ombudsman is really with like the matter. I will respond, one of the respond yeah.

Tribunal: The matter that is listed for hearing before me today is against the Ombudsman and relate to a review of conduct under the PPIPA. There are no current proceedings in this Tribunal between yourself and the Commissioner for Fair Trading.

Applicant: Now, yeah, but this is a new application.

Tribunal: Well, you can't join them to these proceedings.

Applicant: No, no, I didn't draw in the the the original the original trust suggest me to join, but for my my my notice motion. If you see the notice motion, actually I make a conjunction. I say this is 2 case all related. This is the same person.

Tribunal: Well, I'm not going to simply allow you to roll your arm over on the hearing date and join another party who has not been involved in these proceedings from the outset.

Applicant: You want me respond or not? Excuse me? You want me respond or what?

Tribunal: I'm trying to ask you some questions and you are not responding. You are telling me a story, but you're not answering.

Applicant: I did. No, no. This is a general application. This is not a join party. Can you read this is the new case, yeah. The case is evident, right? So why the people come bother come to the court? This is new matter because the registry suggest me show the join party but after I couldn't I couldn't make any reason.

Tribunal: OK, one of these notices of motion seeks to join your proceedings against the Ombudsman with the general application matter, The General Application raises issues of which I have no knowledge at the moment because there does not appear to be any other case in this Tribunal between yourself and the Commissioner for Fair Trading. Is that correct or not? Do you say there are other proceedings?

Applicant: No, no, no, I you, you, you just used the the you try to trick me in for your wording, right. Yeah. But this is the new application. I didn't make a join party because I didn't try to make a join party…

Tribunal: So if you so if you wish to make an application against the Commissioner for Fair Trading, then you do so by way of a new application and not a general application form.

Applicant: In new application yeah, but I think the I think the and had the week before, I did ask which form.

Tribunal: And you would probably you probably have given the registry the current matter number against the Ombudsman because that's your only current proceedings.

Applicant: The Ombudsman, actually the current Ombudsman, was acting Ombudsman in relation with the Fair Trading event, right? So, in the last proceedings I tried because he made an internal review. I tried to ask him attend to the court, answer the question, but that was really I was frustrating, was rejected by the Registrar. Finally, I said all right, more likely we'll join party or conjunction. Then the week before I come to the counter, I say I I try to make a join party, then the registry response say the Fair Trading not really part of you. Yeah. Then he say you you may need to log in another form for the Fair Trading if you want doing something. So I thinking of is make a conjunction. Because the actually the central key person is about man himself. He involves both of the matter.

Tribunal; I repeat that if you wish to commence proceedings against the Commissioner for Fair Trading then you need to apply by way of an administrative review application form. A general application form relates to a matter that is already before the Tribunal and in the matter that is before the Tribunal, the Commissioner for Fair Trading is not a party.

Applicant: Yeah, I've been here week before. They didn't give me the the the right direction.

Well, you need to file an administrative review application form. I believe that carries a filing fee unless you get a waiver. But this matter is listed for hearing today.

Speaker 3

Can I answer because I've been here a couple of time. The 4th time the rigid translate your leader internal review from the Fair Trading the same days trader where I sent the e-mail to Fair Trading. I say I I asked her.

Speaker 2

But but. But but it's not. It doesn't matter to to in these proceedings, which are solely against the the named against the Ombudsman and Privacy Commission NSW, but there's no review against the Privacy Commission. The only respondent to the application that's listed the hearing is the Ombudsman. That is the only respondent. If you want to make a complaint or bring administrative review proceedings against another respondent. Then you need to commence proceedings against them and you do not do that by way of a general application form.

Applicant: So what the form can I use?

Tribunal: The Administrative Review application form like the one that you filed on 29th March 2023 against the Ombudsman. That would commence fresh proceedings between yourself and the Commissioner for Fair Trading.

Applicant: Yeah, is OK. You mean I need to get a review form to to fill up include Fair Trading?

Tribunal: If you wish to proceed against the Commissioner for Fair Trading, you need to formally commence proceedings against them and it it will go through the Tribunal’s case management process, which you're obviously familiar with because you've been through it with the Ombudsman. You file and serve your evidence. They file and serve their evidence. It goes through case conferences to narrow and identify the issues. And then, if the matter cannot be resolved, it gets listed for a hearing. But that's not going to happen today.

Applicant: I I didn't expect anything happen today. I only tried to get the direction right because I've been told many times. I tried to file, join party register say is not. But one thing I tried to mention in relation with with the Ombudsman, I didn't make a request for internal review over nearly several months. Then they will conduct any internal review. The same thing happened with Fair Trading two weeks ago. I think he already translate. All right, you didn't request. For Fair Trading internal review I straight away I make such requests, they never respond. Say they will make an internal review. This will back similar like embarrassment enable intend to do internal review at all.

Tribunal: I have no power to make any orders against the Commissioner for Fair Trading. They are not a party to the proceedings that are listed before me. Do you understand that?

Applicant: Yeah, I didn't ask her to join party.

Tribunal: Well, you've used a form that suggests otherwise. That may not have been your intention, but it's caused a lot of confusion. You were asking for your proceedings against the Ombudsman…

Applicant: The form.

Tribunal: …to be heard in conjunction with this matter. You have used a General Application, which names Fair Trading and the Ombudsman as respondents. That does seek to join a party.

Applicant: Not a join party, conjunction.

Tribunal: Excuse me. No. You can't have conjunction if there's no other proceedings to join.

Applicant: Yeah. Yeah. So I I didn't get the right information. I fell for the general application form.

Tribunal: OK, so if you wish to make an application for administrative review against the Commissioner for Fair Trading, you need to file it and serve it.

Applicant: I will. That, yeah, I will do today.

Tribunal: It's not going to be be heard today.

Applicant: Yeah. Yeah, one bit. I did come here. I asked her. She said the only one be the join party. I I do appreciate. I I understand that the point, right? So I try to file with the right form. The only form I think is relevant is the general application form…

Yeah, I say I will file today. And you let me answer the question. You always say something you don't know. Hold the case because this this case is nearly over one year and then we didn't make a request. Internal review. I've been through another department agency and they never intend to do internal review. The same like I didn't make a request from Fair Trading. They they have a representative here. I don't want to make any make up story. They they they not intend to do…

Tribunal: Let me explain to you what's going to happen today. You have filed an application which on its face looks like you are wanting to join the Commissioner for Fair Trading as a respondent, because you have named Fair Trading NSW as a respondent in your General Application. There is no administrative review application on foot between yourself and the Commissioner for Fair Trading.

In your notices of motion, you have named Fair Trading NSW as second defendant, so you are obviously seeking to join them. Now, if you wish to proceed against the Commissioner for Fair Trading I have told you what you need to do and that is to commence separate proceedings. I have no power to compel them to participate in this hearing to which they're not a party. And I have no evidence before me that would satisfy me that it would be appropriate to join them to the current proceedings.

Applicant: Not join. Can I respond? Conjunction.

Tribunal: What do you consider “not joining” means? OK, what do you understand conjunction to mean?

Applicant: Conjunction is from the AI alright. Artificial intelligence, because I don't have knowledge what is.

Tribunal: I'm simply asking you what you understand “conjunction” means.

Applicant: In conjunction is two cases made together. Yeah, yeah, yeah. Two cases to be heard together. Yeah. Yeah.

Tribunal: But you have no second case. I have already explained to you that there is no case on foot in this Tribunal between yourself and the Commissioner for Fair Trading. If you wish to pursue that course of action, you are free to do so but I cannot join them or make a conjunction order when there is no second case. And if there was a second case that was to be commenced today, and I was to make a conjunction order, I would have to abort this hearing and there would be potentially cost consequences for the late notice. So that's not going to happen.

So if you wish to proceed with your hearing against the Ombudsman, we can do that and the matter will proceed in the absence of the Commissioner for Fair trading, because they are not a party to the proceedings. And there are no proceedings against them at this point in time to be heard in conjunction with your proceedings against the Ombudsman. So what do you want me to do?

Applicant: I may be thinking about. I really want to join party for the current Ombudsman, but I didn't make a…

Tribunal: You don't need to join the current Ombudsman, they have prepared to come here today for a hearing.

Applicant: Yeah, but at the same time they received the second notice of motion because that time I've been the Supreme Court also, I've been the AAT meantime and the conclusion is I be the join party because the Fair Trading was in the proceeding like a Tribunal.

Tribunal: Well, I only have one notice of motion. Are you saying that there's a second notice of motion?

Applicant: Yeah, yeah, the if you say the General Application I feel step is 15 November 2023, then second is notice of motion. Like the step is the same as 15 November 2023, then they have another notice of motion. I think it's under maybe 4^th of November or the 30^th October..

Tribunal: OK, so your second notice of motion is seeking an order that certain people attend to give evidence today?

Applicant: Before 30th October, I make a summons to produce documents. I requested that the Ombudsman attend for the hearing, but was refused by the registrar. Then I make a notice of motion, I say alright I want to have some join party, then straight away they make an adjournment.

Tribunal: Alright, so you are now saying that you want to join the people named in this notice of motion as parties?

Applicant: Yeah, I mention four people. One is Ombudsman, second is another officer, two others are the Fair Trading.

Tribunal: OK, in the notice of motion that you filed on the 30th October, you say that the person affected by the orders that are sought are “Ombudsman NSW Paul Miller”, “Fair Trading NSW Rose Webb, Lyn Wotton and Craig Rorie”. You sought orders that pursuant to section 44(1) of the NCAT Act, Mr. Miller and those three people form Fair Trading attend the hearing as party to the proceedings.

On what basis do you say I have power to join individuals to these proceedings without prior notice?

Applicant: Yeah, yeah, I I want them attend to the hearing but refused by the registrar. I ask her another Tribunal related with breaching the privacy. They they have a list of the hearing, but before the hearing I make some more to to request the four people attend for the hearing, but straight away, the registrar refused. They say no, they did not agree any party will attend, so I say, alright, this case actually not the not the finish right because another party just not included in this this this case. So in that time I make a notice of motion. I say I made one join party to solve all this…

Tribunal: Do you do you have before you a copy of the registrar’s letter to you by e-mail dated 31st October 2023?

Applicant: No, I don't.

Tribunal: I'll read it to you. It says, that the applicant has lodged a purported notice of motion seeking various people be added as respondents. If the applicant seeks to have persons added as respondent, then he must lodge a separate joinder application form for each person, he seeks to be added as a respondent. It is noted that the substantive application is an administrative review of a privacy decision. The applicant will also need to provide submissions with the application for JOINDER, clearly identifying the legal and factual basis on which the relevant person can be served.

Did you do any of that?

Applicant: Can I answer? I come two weeks ago, I bring all the documents then I try to file. Then the clerk asks the registrar and she come back and she “…you can't make a join partly because Fair Trading not in the proceedings”. Then I say I will make a conjunction.

Then after the Fair Trading solicitor contact me, say “where is the submission?” Because I couldn't join party so really not go to like the legal pass, right? So I concentrate try to ask her which form I can fill in. So I feel the separate case with Fair Trading include the Ombudsman himself. Then I make a notice of motion. Second, notice motion is “the conjunction”. So today I prepare all the documents “in conjunction”.

Tribunal: OK. Well then there are no proceedings that on foot against the Commissioner for Fair Trading that can be subject of “a conjunction order”.

The second part of your notice of motion filed on 30th October 2023, seeks in the alternative, that under s 51 of the NCAT Act, the current proceedings against NSW Ombudsman be adjourned. Do you want your proceedings to proceed against the Ombudsman today or not?

Applicant: I lead the thinking about because the original icon is the conjunction.

Tribunal: OK, well. It's 1030. The matter is listed for half a day. I'll give you until 10:45 to decide whether or not you wish to proceed against the Ombudsman NSW on the listed matter.

Applicant: You mean the join party?

Tribunal: No. You have been advised by the registry on 31st October 2023 of what you needed to do if you wanted to join parties. You haven't done any of it.

Applicant: It I did. I compose it twice and they not they...

Tribunal: In relation to your notice of motion that you filed on 30th October 2023, seeking to join 4 individuals, the Registrar rejected that on the 31st October 2023, and she specifically advised you what you needed to do if you wanted to join them, and that was to file a joinder application and submissions.

You just told me you didn't do that, so there is no joinder application.

You've also told me this morning several times that you're not seeking to join Fair Trading to these proceedings, but you want me to order that proceedings that you have not yet commenced against Fair Trading, be heard in conjunction with your proceedings against the Ombudsman NSW.

Applicant: You want me respond or you won't continue to talk?

Tribunal: Am I going to get a sensible response?

Applicant: Yeah, the the issue is before I make this notice motion, I make a couple of times, I make a summons to produce documents. I make a summons to request people attend for the hearing, but all refused by Registrar.

Tribunal: Yes, because if they have not provided evidence in the proceedings, there is no basis for issuing a summons to them requiring them to attend to give evidence.

Applicant: Can you want me answer. Or or not, because I'm batsman.

Mr. Miller, he read the internal review order by the Tribunal member.

Don't like the internal review? Over nearly 10 pages, a lot of thing is made-up story.

Then I make a summons to attend to the hearing. I say alright, this person is right. Internal review, right? It's all like about about the breach of the privacy. I want this person or attend the hearing. I couldn't understand any good reason. Say somebody wrote a legal document, then don't need to come to the hearing. So I was frustrating. Then I say alright, if no, this way maybe another way is to join party or conjunction.

Tribunal: Well, that's not an option because there are no proceedings against any other party that can be the subject of a order that matters be heard together.

Applicant: Yeah, I've been here two or three weeks ago, the Registrar conclusion say you need to fail the new form, but he didn't tell me exactly which form. I say only one option in either day right is the conjunction.

Tribunal: There has obviously been some confusion between yourself and the registry, but the fact of the matter is that right at this moment at 10:32 AM on 21st November 2023, there are no other proceedings on foot that can be the subject of a what you call “a conjunction order”…

31. Upon the completion of the applicant’s oral submissions, the Tribunal determined that it was not necessary to call upon either Mr Wong or Ms Steel to respond, as the applicant had not established any sound basis for the orders that he sought.

Ex-Tempore decision

32. The Tribunal dismissed the Notice of Motion that sought “a conjunction order” between the application for administrative review against the respondent and the General Application, and the Notice of Motion that sought to join four named individuals as parties to the current proceedings.

33. The Tribunal also dismissed the General Application filed on 15 November 2023.

Reasons for decision in relation to the interlocutory determination

34. The Tribunal noted that in relation to the General Application and the Notices of Motion, the applicant initially stated that he did not wish to join the Commissioner for Fair Trading, but that he wanted “a conjunction order” between his General Application and his administrative review application against the respondent.

35. However, the applicant later said that he wanted to join the Commissioner for Fair Trading and four individuals, namely: (1) Mr Miller (the Ombudsman NSW); (2) Ms Webb (the Commissioner for Fair Trading) and (3) two other officers of the Commissioner for Fair Trading to these proceedings.

36. The applicant previously applied to have summonses issued to these individuals. The Registrar refused his application and he then sought a review of that decision. That review was conducted by Senior Member Higgins on 9 October 2023, when she made the following orders:

The application of (FTN) seeking review of the Registrar’s decision to refuse his application for a summons to be issued to Paul Miller the NSW Ombudsman, Lyn Wotton an employee of the Office of Fair Trading and Craig Rorie also an employee of the Office of Fair Trading is dismissed.

Reasons

In his application for review, (FTN) seeks review of the conduct of the Ombudsman which he asserts to be a breach by the Ombudsman of an information protection principle that applies to the Ombudsman concerning personal information the Ombudsman held about him.

The conduct in issue is a letter the Acting Deputy Ombudsman wrote to Mr Clayton Barr MP, on 14 March 2022, in response to a letter Mr Clayton Barr had written to the Ombudsman on 13 December 2021 and again on 15 March 2022 concerning some issues (FTN) had with his property. In his letter of 13 December 2021 Mr Clayton Barr said he would appreciate if the issues raised by (FTN) in the email attached to the letter could be investigated, and that he was looking forward to a response.

The 14 March 2022 response of the Acting Deputy Ombudsman advised Mr Clayton Barr of what action had been taken in response to the issues that had been raised in the email by (FTN) concerning his property. The response went on to include information about two earlier complaints that (FTN) had made to the Ombudsman and what action had been taken in regard thereto. It is this additional information about him that is the subject of (FTN’s) privacy complaint in these proceedings.

In support of his application for review of the Registrar’s decision to refuse his application for a summons to issue, (FNTN) relied on a letter, included in the Ombudsman’s s 58 documents, that was written by Paul Miller, to (FTN) and dated 20 November 2020, concerning a complaint he had made to the Ombudsman about NSW Fair Trading and the manner in which it dealt with his dispute with ARA Engine Reconditioning.

As I explained to (FTN), his application for review is an application for review of the conduct of the Ombudsman in regard to the information about him that was included in the response to Mr Clayton Barr. That response, I note makes no reference to his dispute with ARA Engine Reconditioning or his complaint to the Ombudsman in regard to the manner in which Fair Trading dealt with that dispute.

Even if the Ombudsman letter the subject of this application were to have referred to this 2020 dispute, this does not give the Tribunal jurisdiction to review decisions made by Fair Trading in regard to that dispute. The Tribunal’s jurisdiction is limited to the conduct of the Ombudsman the subject of (FTN)’s internal review application: see Privacy and Personal Information Protection Act 1998 (NSW), s 55(1) and the Administrative Decisions Review Act 1997 (NSW) s 7 and 9.

Accordingly, I agree with the decision made by the Registrar that (FTN)’s application for a summons to be issued to Paul Miller, Lyn Wotton and Craig Rorie should be refused as (FTN) has failed to demonstrate that these persons can give evidence or produce documents that are of any relevance to his application that is before the Tribunal.

37. The applicant filed the Notice of Motion seeking to join these four individuals following Senior Member Higgins’ decision and it appears that he applied to join them on the basis that if they were parties to the proceedings, they would be required to attend the hearing and he could then ask them questions.

38. Section 44 of the NCAT Act provides:

Parties and intervention

(1) The Tribunal may order that a person be joined as a party to proceedings if the Tribunal considers that the person should be joined as a party.

(2) The Tribunal may order that a person be removed as a party to proceedings if the Tribunal considers that the person has—

(a) been improperly or unnecessarily joined, or

(b) ceased to be a proper or necessary party.

(3) For the avoidance of doubt, the member or members who constituted the Tribunal when it made an internally appealable decision cannot be made parties to an internal appeal against the decision.

(4) The following persons may intervene and be heard in proceedings to which they are not already parties—

(a) the Attorney General,

(b) a Minister who administers the legislation that confers or imposes functions the exercise (or purported exercise) of which are in issue in the proceedings,

(c) any other person who is authorised by this Act, enabling legislation or the procedural rules to intervene in the proceedings.

(5) A Minister may (from money otherwise lawfully available for the purpose) authorise the payment to a party to the proceedings in which the Minister or the Minister’s delegate intervenes such costs (if any) as the Minister considers were reasonably incurred by that party in relation to the proceedings as a result of that intervention.

39. Accordingly, the issue for the Tribunal to determine is whether these individuals should be joined as parties to the current proceedings.

40. The current application seeks administrative review of alleged conduct by the respondent that involved a breach of the PPIPA.

41. It appears that the applicant asserts that Mr Miller, the current NSW Ombudsman, has personal knowledge of his matters because he “wrote” the internal review decision that followed upon the orders made by Senior Member McAteer on 24 April 2023.

42. However, as Mr Miller is the current holder of that Statutory Office, it is apparent that the Internal Review decision dated 15 May 2023 was issued in his name. I note that the actual decision indicates that the review was conducted and by Megan Smith, Legal Counsel of the respondent and not by Mr Miller personally.

43. Based upon the evidence before me, I am not persuaded that Mr Miller conducted the internal review and/or that he wrote the internal review decision dated 18 May 2023. Accordingly, there is no sound basis for joining him as a party to these proceedings.

44. In relation to the application to join the current Commissioner for Fair Trading and two of her officers as individual respondents, there is no evidence before me that establishes a sound basis that they were parties to the alleged breach of privacy by the respondent that is the subject of the current administrative review.

45. Based upon the evidence before me, I am not persuaded that either the Commissioner for Fair Trading and/or any of her named officers are able to provide any evidence that is logical, probative and relevant to the alleged breach of privacy by the respondent that is the subject of the current administrative review application.

46. It follows that there is no sound basis for an order joining any of the four named individuals as parties to matter no. 2023/00101979.

47. In relation to the General Application, which generated matter no. 2023/00362924, I consider that it is misconceived for the following reasons:

1. It seeks “enforcement and remedies” against the Commissioner for Fair Trading under Part 6 of the Fair Trading Act 1987 (NSW), in circumstances where there were no proceedings on foot between the applicant and the Commissioner; and

2. It seeks “enforcement and remedies” under the Competition and Consumer Act 2010 (Cth), in circumstances where this Tribunal has no power to determine any matters arising under that Commonwealth legislation.

48. Finally, in relation to the Notice of Motion filed on 15 November 2023, which sought an order that the General Application matter be heard in conjunction with the current application against the respondent, I consider it to be misconceived.

49. The General Application could not be used to join the Commissioner for Fair Trading as a party to the current proceedings and the applicant was advised by the Tribunal that if he wished to commence proceedings against the Commissioner, he needed to file an application for administrative review. However, he did not do so.

50. As a result, there were no other proceedings involving the applicant as at 21 November 2023 against which a conjunction order could be made and the Tribunal therefore dismissed that Notice of Motion.

Determination of the substantive application

51. Following the dismissal of the General Application and Notices of Motion, the matter that remained for consideration was the applicant’s privacy complaint against the respondent. This was listed for hearing on 21 November 2023 and the Tribunal did not, at any time prior to 21 November 2023, vacate that hearing.

52. The Tribunal asked the applicant whether he wanted the hearing of his application against the respondent to proceed? He replied:

No, I don't want to do anything this one, because actually I if for example if I fail. The form, right? Right, I I done something right already ready to say you need to. The internal review from the Fair Trading I got the e-mail. I have evidence. I requested the same day, just maybe 10 minutes then then.

53. The Tribunal asked the applicant whether he was saying that he did not want his application to be heard? He replied:

I say I don't know because another my expect something happened today. I think at least application form is right for. So if this is right phone today certainly is 2 issue. Consider one is new case about the Fair Trading. Second is if the tribunal accept the new case set up right. Then I tried to ask her make a conjunction is the second step, but actually the application form general form. The tribunal just point out, is wrong form. I didn't make a request for review from the. Fair Trading, right? They not intend to do. This happens repeat many time the same like Ombudsman, they never intend to do the internal review.

54. The Tribunal noted that the applicant came to the Tribunal knowing that his matter against the respondent was listed for hearing, the matter was listed for a hearing on 9^th October 2023 and the respondent was in attendance and ready for the hearing.

55. The applicant stated:

I say I couldn't answer you because everything I didn't prepare all the documentary relate with the join party.

56. The Tribunal understood this to mean that the applicant did not bring any of his documents relating to the substantive application against the respondent to the hearing and that he was not ready to proceed to a hearing, despite it having been listed some time ago.

57. The Tribunal asked Mr Wong what the respondent had to say about the applicant not wanting the hearing to proceed?

58. Mr Wong replied that there was no good reason for the matter not to proceed. The applicant’s concerns or what he wishes to do is have Fair Trading involved in these proceedings in some way, shape or form, whether it be by attending or giving evidence. His difficulty is that the conduct that is the subject of the privacy complaint has nothing to do with Fair Trading and the conduct that is under review, which is the subject of the Ombudsman's internal review, relates to a letter from the NSW Ombudsman to Mr Barr MP, who was representing the applicant in relation to a complaint about Transport for NSW. The applicant’s concerns related to the disclosure in that letter of some previous complaints he had made, none of which involved Fair Trading, and on that basis the respondent does not see how the issue of Fair Trading’s involvement would in any way affect the review that the Tribunal needs to conduct in relation to its letter to Mr Barr from 2022.

59. The Tribunal asked the applicant the basis on which he says that Fair Trading has anything to do with these proceedings? The applicant replied:

Fair Trading. The the the case is not as straightforward because Fair Trading involved with another matter. I dispute with the auto repair. In neither time the Fair Trading, not the egg. On the law. And then I make a complaint to Ambassador. So in other times, Mr. Paul Miller, respond that was involved with some misconduct.

60. The Tribunal asked the applicant whether Fair Trading’s alleged involvement has anything to do with his complaint to the respondent about Transport for NSW? He replied:

And now? Yeah. Transport. Transport. No. Sorry. No, no, not that. Really. With the transport news as well…

I didn't prepare. I didn't bring any document, relate with it the the join party because later notice motion never mention about join party. I've been here talking with registrar registrar, say…, the fair, trading not at the party. How can you join the party? Not really. With the breach, the privacy. So I accept. I understand. So I feel that new phone with the separate case about the Fair Trading.

61. The Tribunal asked Miss Steel if she wished to make any submissions on behalf of the Commissioner for Fair Trading. She replied that the Commissioner would oppose Joinder and says that the Tribunal does not have jurisdiction to determine the General Application form as against her. The applicant has not identified any conduct of Fair trading that he seeks review of within his General Application and he has not identified any legislation that would confer jurisdiction on the Tribunal to determine that application.

62. The Tribunal made the following decision:

1. I noted that the applicant sought an adjournment of the hearing of his privacy complaint against the respondent, which has been listed for hearing for quite some time, on the basis that he does not believe or cannot recall whether he received an Order that was issued by Principal Member Simon on 15 November 2023, which is marked as being emailed to his personal e-mail address.

2. I noted that the applicant told me from the bar table that he has not brought any of his papers with him for a hearing today, despite the fact that the Tribunal has not at any stage vacated the hearing date.

3. Given that the applicant is self-represented, I am not going to force him to litigate his hearing today and I will adjourn the hearing.

63. I made the following orders:

Matter no. 2023/00362924:

1. The General Application filed on 15 November 2023 is refused.

2. The Notice of Motion filed on 15 November 2023 is dismissed.

3. The applicant has informed the Tribunal that he intends to appeal against these decisions. On that basis, the Tribunal will publish written reasons within 28 days.

Matter no. 2023/00101979:

4. The Commissioner for Fair Trading is excused from further participation in the hearing of this application.

5. The hearing date of 21 November 2023 is vacated.

6. The proceeding is listed for directions on 12 December 2023 at a time to be fixed by the Registrar at John Maddison Tower, Level 10, 86-90 Goulburn Street, Sydney.

7. The costs for the hearing of 21 November 2023 are reserved.

**********

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: 12 December 2023