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

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading FTN v NSW Ombudsman

Details

AGLC: FTN v NSW Ombudsman [2023] NSWCATAD 319
Case: [2023] NSWCATAD 319
Decision Date: 12 December 2023

CaseChat Overview and Summary

The case before the Administrative Appeals Tribunal involved a party, referred to as FTN, challenging the decision of the NSW Ombudsman. FTN sought to join additional parties to the proceedings, the NSW Government and the NSW Commissioner for Fair Trading, as respondents in their application for administrative review. The crux of the dispute lay in FTN’s claim of a privacy breach by the NSW Ombudsman, which they alleged was exacerbated by the actions of the NSW Government and the Commissioner for Fair Trading. The Tribunal was tasked with determining the admissibility of these additional parties to the proceedings and whether the existing application could be heard concurrently with other pending proceedings.

The primary legal issue the Tribunal addressed was whether the General Application seeking to join additional respondents could be entertained at that stage, and if the application could proceed alongside other litigation not yet commenced. FTN argued that the existing application should be heard in conjunction with the anticipated proceedings against the additional respondents, but the Tribunal found this proposition to be legally flawed. The Tribunal reasoned that the application for joinder was misconceived as it did not align with the procedural rules governing administrative review, particularly those concerning the timing and manner of adding parties to the proceedings. Furthermore, the Tribunal held that existing applications could not be heard in conjunction with other proceedings that had not yet been initiated.

In reaching its decision, the Tribunal firmly rejected the application to join additional parties and dismissed the accompanying notice of motion. The Tribunal emphasised that the procedural rules did not support the attempt to join parties at that juncture, particularly when the proceedings against the additional respondents had not yet commenced. Consequently, the application was refused, and the notice of motion was dismissed. The Tribunal also excused the Commissioner for Fair Trading from further participation in the hearing and vacated the previously scheduled hearing date. The matter is set for further directions, with costs of the initial hearing reserved. FTN has indicated an intention to appeal the Tribunal's decisions, prompting the Tribunal to commit to issuing written reasons within 28 days.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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).