FTN v Ombudsman NSW

[2024] NSWCATAD 111

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FTN v Ombudsman NSW [2024] NSWCATAD 111

Hearing dates:

22 April 2024

Date of orders:

26 April 2024

Decision date:

26 April 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Ledda, Senior Member

Decision:

The application lodged by FTN on 29 March 2023 is dismissed because the Tribunal does not have jurisdiction.

Catchwords:

ADMINISTRATIVE LAW − privacy – jurisdiction of NSW Civil and Administrative Tribunal to review conduct of Ombudsman and officers of Ombudsman − effect of 35A of Ombudsman Act 1974 (NSW)

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Anti-Discrimination Act 1977 (NSW)

Civil and Administrative Legislation (Repeal and Amendment) Act 2013 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Freedom of Information Act 1989 (NSW)

Government Sector Employment Act 2013 (NSW)

Legal Aid Commission Act 1979 (NSW)

Ombudsman Act 1974 (NSW)

Police Act 1990 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:

Attorney-General for New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342

Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21

Azshion v Ombudsman NSW [2016] NSWCATAD 249

Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16

Coleman v Power (2004) 220 CLR 1; [2004] HCA 39

Commissioner of Taxation v Energy Resources of Australia Ltd (2003) 135 FCR 346; [2003] FCAFC 314

CP v New South Wales Ombudsman [2002] NSWADT 103

CSR Limited v Eddy (2005) 226 CLR 1; [2005] HCA 64

DHU v Commissioner of Police, NSW Police Service [2018] NSWCATAP 282

Ekermawi v Nine Network Australia Pty Limited [2019] NSWCATAD 29

Federated Engine-Drivers and Firemen’s Association of Australasia v The Broken Hill Proprietary Company Limited (1911) 12 CLR 398; [1911] HCA 31

FTN v NSW Ombudsman [2023] NSWCATAD 319

GA v Commissioner of Police, NSW Police [2004] NSWADT 254

Kaldas v Barbour (2017) 107 NSWLR 341; [2017] NSWCA 275

Micro Focus (US) Inc v New South Wales (2011) 195 FCR 506; [2011] FCA 787

Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20

Oliver v Nine Network Australia Pty Ltd [2019] FCA 583

QQ v NSW Ombudsman [2012] NSWADT 109

QQ v NSW Ombudsman (EOD) [2012] NSWADTAP 34

STAR Training Academy Pty Ltd v Commissioner of Police [2021] NSWCATAP 370

The Ombudsman v Koopman (2003) 58 NSWLR 182; [2003] NSWCA 277

The Ombudsman v Laughton (2005) 64 NSWLR 114; [2005] NSWCA 339

Uddin v Truong [2022] NSWCATAP 323

Texts Cited:

Perry Herzfeld and Thomas Prince, Interpretation (2nd ed, 2020, Thomson Reuters)

Category:

Principal judgment

Parties:

FTN (Applicant)
Ombudsman NSW (Respondent)

Representation:

Applicant (self-represented)
D Wong (Respondent)

File Number(s):

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

Introduction

1. The applicant, whose name has been anonymised because of a non-publication order previously made by the Tribunal, seeks to make an application (the applicant’s application) under s 55 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) for an administrative review of conduct of the Ombudsman NSW (the respondent).

2. The conduct involves the disclosure of information about the applicant to a member of Parliament following a request for an investigation of a complaint made by the member on behalf of the applicant. The applicant claims the disclosure contravened the information privacy principles (the IPPs) set out in Pt 2, Div 1 of the PPIP Act.

3. Before the hearing on 22 April 2024, the Tribunal notified the parties of a jurisdictional issue concerning the applicant’s application and directed them to provide written submissions to allow the issue to be addressed at the beginning of the hearing.

4. The jurisdictional issue is whether s 35A of the Ombudsman Act 1974 (NSW) (Ombudsman Act) prevents the Tribunal from having or exercising jurisdiction to deal with the applicant’s application. In particular, the direction for submissions referred the parties to the decision of the Court of Appeal in The Ombudsman v Koopman (2003) 58 NSWLR 182; [2003] NSWCA 277 (Koopman).

5. I heard oral argument on behalf of the parties on the jurisdictional issue at the beginning of the hearing. After the conclusion of argument, I reserved my decision on whether the Tribunal had jurisdiction and adjourned without proceeding to hear the merits of the applicant’s application. I indicated that the application would be re-listed for a hearing on the merits if I decided the Tribunal had jurisdiction.

6. The reason I gave for following this course was that jurisdiction was a threshold issue. I pointed out that if the Tribunal did not have jurisdiction, then any decision made about the merits of the applicant’s application would be a nullity: Attorney-General for New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342 at 357 (McHugh JA with whom Hope JA agreed). In these circumstances, I thought it was appropriate to adjourn before proceeding to hear the merits to enable me to consider and then decide this threshold issue.

7. After carefully considering the jurisdictional issue and the parties’ submissions about it, I have decided that the Tribunal does not have jurisdiction to deal with the applicant’s application and, accordingly, the application should be dismissed. These are my reasons.

Proper respondent under the PPIP Act

8. Before turning to the jurisdictional issue, a preliminary matter should be mentioned.

9. The applicant’s application named “Ombudsman NSW” as the respondent and the proceedings relating to the application have continued up to this point on the basis that the “Ombudsman NSW” or “NSW Ombudsman” is the respondent: see, for example, FTN v NSW Ombudsman [2023] NSWCATAD 319.

10. Section 55 of the PPIP Act enables a person to make an application for the administrative review of conduct only if it is the conduct of a public sector agency.

11. A public sector agency is defined to include a Public Service agency: PPIP Act, s 3(1) (definition of “public sector agency”). The Ombudsman’s Office is a Public Service agency, with the Ombudsman as its head: Government Sector Employment Act 2013 (NSW), s 3(1) (definition of “Public Service agency” read with the definition of “separate Public Service agency”) and Sch 1, Pt 3.

12. In addition, the PPIP Act itself refers to the Ombudsman’s Office in several provisions rather than to the Ombudsman: PPIP Act, ss 3(1) (definition of “investigative agency”), 24(7), 28(1) and 42(3).

13. Given this context, the proper respondent is arguably the Ombudsman’s Office rather than the Ombudsman personally: cf CP v New South Wales Ombudsman [2002] NSWADT 103 (the original ADT Koopman decision) at [22] (O’Connor DCJ).

14. Nevertheless, the applicant’s application is, in substance, about the conduct of the Ombudsman’s Office. In particular, the disclosure claimed in the application was made by the Acting Deputy Ombudsman on behalf of the Ombudsman rather than by the Ombudsman personally.

15. Consequently, it is appropriate to treat the applicant’s application as an application about the conduct of a public sector agency for the purposes of the PPIP Act.

Background to the applicant’s application

16. The applicant’s application, which was lodged on 29 March 2023 under s 55 of the PPIP Act, seeks an administrative review of a disclosure of information about the applicant made to a member of Parliament in a letter dated 14 March 2022 signed by the Acting Deputy Ombudsman (the disclosure letter).

17. The disclosure letter was in response to correspondence from the member of Parliament addressed to the respondent concerning conduct by certain public authorities that the applicant claimed had, among other things, adversely affecting his property. In a letter dated 13 December 2021, the member said he would appreciate it if the respondent could investigate the conduct mentioned in the email attached to the letter, and that he was looking forward to a response. The attached email was an email from the applicant addressed to the member seeking his assistance in getting the respondent to investigate the conduct mentioned in the email.

18. A member of Parliament may, with a person’s written consent, make a complaint to the Ombudsman on behalf of the person about the conduct of a public authority: Ombudsman Act, s 12(2) and (4).

19. On this basis, the Acting Deputy Ombudsman wrote to the member on 21 January 2022 requesting the written consent of the applicant to investigate the complaint. On 15 February 2022, the member wrote to the respondent again requesting an investigation and a report. The correspondence attached a letter from the applicant setting out his concerns, along with a signed consent from the applicant for the member to represent the applicant’s complaint.

20. The disclosure letter sent in response included information about other complaints the applicant had previously made to the respondent. The applicant claims the disclosure of this information contravened the IPPs set out in ss 16, 17 and 18 of the PPIP Act.

21. The applicant originally applied to the respondent on 14 August 2022 for an internal review of the disclosure. The respondent concedes that, because of an oversight, the internal review was not conducted within the maximum 60-day period required by s 53(6) of the PPIP Act or, indeed, before the applicant’s application was lodged. The Tribunal, with the respondent’s consent, made an order on 22 April 2023 for the respondent to conduct an internal review. Following the internal review, the respondent notified the applicant that the reviewer did not consider the disclosure contravened the IPPs set out in ss 16, 17 and 18 of the PPIP Act for the reasons given in the notice of the review.

Duty to determine whether the Tribunal has jurisdiction

22. Jurisdiction is the authority of a court or tribunal to decide a case and is to be distinguished from the powers that the court or tribunal may use in exercising its jurisdiction to decide the case: Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20 at [6] (Gleeson CJ and McHugh J).

23. It is a judicially enforceable duty of a court or tribunal to comply with the limits of its own jurisdiction and, as a result, the court or tribunal necessarily has “power to take [the] steps needed to ensure its own compliance with that duty”: Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16 (Citta) at [21] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). Indeed, it is the “first duty” of a court or tribunal to be satisfied it has jurisdiction: Federated Engine-Drivers and Firemen’s Association of Australasia v The Broken Hill Proprietary Company Limited (1911) 12 CLR 398 at 415; [1911] HCA 31 (Griffith CJ).

24. A consequence of this duty is, as Lee J observed in Oliver v Nine Network Australia Pty Ltd [2019] FCA 583 at [9], that “jurisdiction cannot be conferred by agreement and the views of the parties are not determinative of a jurisdictional question”: see also Uddin v Truong [2022] NSWCATAP 323 at [54].

25. Accordingly, I must be independently satisfied that the Tribunal has jurisdiction to deal with the applicant’s application before the merits of the application can be considered.

26. Section 28(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that the Tribunal has such jurisdiction as may be conferred or imposed on it by or under the NCAT Act or any other legislation.

27. Because the jurisdiction of the Tribunal is based on legislation, it is necessary to consider whether legislation confers relevant jurisdiction on the Tribunal. It is also necessary to consider whether legislation prevents the Tribunal from having or exercising jurisdiction.

28. It follows that in deciding whether the Tribunal has jurisdiction to deal with the applicant’s application, I need to be satisfied that:

1. the PPIP Act would, apart from s 35A of the Ombudsman Act, confer jurisdiction on the Tribunal; and

2. s 35A does not prevent the Tribunal from having or exercising that jurisdiction.

29. These 2 issues should be considered in the order listed above. This is because there would be no need to consider whether s 35A applies to the applicant’s application if the PPIP Act did not in any event confer jurisdiction on the Tribunal: cf Azshion v Ombudsman NSW [2016] NSWCATAD 249 at [18] (Ludlow SM).

Jurisdiction of the Tribunal under the PPIP Act

30. One kind of jurisdiction of the Tribunal is its administrative review jurisdiction: NCAT Act, s 28(2). The Administrative Decisions Review Act 1997 (NSW) (ADR Act) provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator: NCAT Act, s 30 (1).

31. Section 9(1) of the ADR Act provides that the Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under the ADR Act of the decision (or class of decisions) made by the administrator in exercise of functions conferred or imposed by or under, or identified by, legislation.

32. Administrative review jurisdiction may be conferred in relation to the conduct of an administrator because the term “decision” extends beyond a decision within the ordinary meaning of the term (for example, a decision to refuse a licence) to include doing or refusing to do any other act or thing: ADR Act, s 6(1)(g); see also NCAT Act, s 5(1)(g).

33. Section 8(1) of the ADR Act defines an administrator, in relation to an administratively reviewable decision, to mean the person or body that makes (or is taken to have made) the decision under enabling legislation.

34. Section 4(1) of the ADR Act defines enabling legislation to mean legislation (other than the ADR Act or any statutory rules made under the ADR Act) that:

1. provides for applications to be made to the Tribunal with respect to a specified matter or class of matters; or

2. otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters.

35. Section 55(1) of the PPIP Act provides that a person may apply to the Tribunal for an administrative review under the ADR Act of conduct of a public sector agency that was the subject of an internal review application made by the person under s 53 if the person is not satisfied with the findings of the internal review or the action taken by the agency in relation to the internal review application. Section 53 of the PPIP Act, read with s 52, enables an aggrieved person to apply to a public sector agency for an internal review of conduct of the agency involving the contravention, or alleged contravention, of IPPs applicable to the agency.

36. In GA v Commissioner of Police, NSW Police [2004] NSWADT 254 at [4], Hennessy LCM (as she then was) identified the following 3 preconditions for a person to make an application under s 55 of the PPIP Act:

1. The person must have made an internal review application under s 53.

2. The person must be dissatisfied with the findings of the internal review or the action taken by the public sector agency in relation to the internal review application.

3. The person must be asking the Tribunal to review the conduct that was the subject of the internal review application.

37. For completeness, I would include an additional precondition: that the person must be asking the Tribunal to review the conduct of a public sector agency.

38. I consider that these 4 preconditions were satisfied in relation to the applicant’s application because:

1. the applicant, for the reasons given at [8]−[15] above, is asking the Tribunal to review a disclosure made by a public sector agency; and

2. the respondent accepts that the applicant applied for an internal review of the disclosure before the applicant applied to the Tribunal and it was not conducted within the 60-day period required by s 53(6); and

3. the applicant was clearly dissatisfied with the lack of action on the internal review application; and

4. the applicant’s application relates to the same disclosure as the internal review application.

39. In addition, as the internal review was not conducted within 60 days of the applicant applying for it, s 53(6) of the PPIP Act provides that the applicant was entitled to make an application under s 55 to the Tribunal for an administrative review of the disclosure despite the absence of an internal review.

40. Except for the effect of s 35A of the Ombudsman Act, I would have been satisfied that the Tribunal had administrative review jurisdiction to deal with the applicant’s application.

Effect of s 35A of the Ombudsman Act on the jurisdiction of Tribunal

Text of s 35A

41. Section 35A of the Ombudsman Act provides as follows:

35A Immunity of Ombudsman and others

(1) The Ombudsman shall not, nor shall an officer of the Ombudsman, be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings in respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act unless the act, matter or thing was done, or omitted to be done, in bad faith.

(2) Civil or criminal proceedings in respect of any act or omission referred to in subsection (1) shall not be brought against the Ombudsman or an officer of the Ombudsman without the leave of the Supreme Court.

(3) The Supreme Court shall not grant leave under subsection (2) unless it is satisfied that there is substantial ground for the contention that the person to be proceeded against has acted, or omitted to act, in bad faith.

(4) An Australian legal practitioner assisting the Ombudsman or representing a person at an inquiry held by the Ombudsman has the same protection and immunity as a barrister has in appearing for a party in proceedings in the Supreme Court.

42. Section 35A(1) is a complex provision. It has the following elements:

1. The subsection prevents “civil or criminal proceedings” being brought against the Ombudsman or an officer of the Ombudsman for certain conduct “on the ground of want of jurisdiction or on any other ground”.

2. The conduct to which the subsection applies is “any act, matter or thing done or omitted to be done for the purpose of executing [the Ombudsman Act] or any other Act”.

3. However, the subsection does not cover an “act, matter or thing [that] was done, or omitted to be done, in bad faith”.

43. In addition, s 35A(2) prevents civil or criminal proceedings being brought for an act or omission referred to in s 35A(1) unless the Supreme Court grants leave to do so. Section 35A(3) provides that the Supreme Court cannot grant leave unless the Court is satisfied there is a substantial ground for the contention that the Ombudsman or officer acted, or omitted to act, in bad faith. Leave cannot be granted to authorise proceedings that were brought before the leave is sought: Kaldas v Barbour (2017) 107 NSWLR 341; [2017] NSWCA 275 (Kaldas) at [323]−[325] (Basten JA with Macfarlan JA agreeing).

44. The applicant concedes that he has not applied for or been granted leave by the Supreme Court to make his application.

Submissions of the parties

45. The applicant submits that s 35A does not prevent his application from being brought principally because the disclosure claimed in the application was made in bad faith.

46. In addition, he relied in his written submissions on the decision of O’Connor DCJ in the original ADT Koopman decision. O’Connor DCJ held that s 35A did not apply to applications made under s 55 of the PPIP Act because the PPIP Act impliedly repealed s 35A in relation to the jurisdiction of the Administrative Decisions Tribunal (ADT). During argument I informed the applicant that this decision was overturned on appeal by the Court of Appeal in Koopman. The applicant then submitted that the decision in Koopman could be distinguished because s 35A was raised as a jurisdictional issue by the Ombudsman at the outset of the proceedings in the ADT. However, the respondent did not raise the issue in these proceedings. Rather, the issue was raised by the Tribunal itself and only very recently.

45. It is unfortunate that this jurisdictional issue was not raised soon after the applicant lodged his application. Nonetheless, as noted in [23]−[24] above, the Tribunal is under a judicially enforceable duty to ensure it complies with the limits on its jurisdiction. This duty applies regardless of when a jurisdictional issue is first raised in proceedings and the parties cannot, whether by agreement or other conduct, release the Tribunal from the obligation to comply with it.

46. In his oral submissions, the applicant also informed the Tribunal that he had recently applied to Legal Aid NSW for their assistance concerning making an application to the Supreme Court for leave. He is awaiting their response. Mr Wong, who appeared for the respondent at the hearing, did not dispute that this had happened. Mr Wong also drew my attention to the issue of whether these proceedings should be adjourned pending the determination of the legal aid application. I do not think the legal aid application requires the Tribunal to adjourn the proceedings. Section s 57 of the Legal Aid Commission Act 1979 (NSW) requires the Tribunal to adjourn proceedings only if a party to the proceedings appeals, or intends to appeal, to the Legal Aid Review Panel against certain decisions concerning the granting of legal aid. As the legal aid application has not been determined, there can be no question yet of an appeal to the Panel. In any event, the legal aid application concerns potential proceedings in the Supreme Court rather than these proceedings.

47. The respondent submits the following:

1. The disclosure claimed in the applicant’s application relates to conduct within the scope of s 35A of the Ombudsman Act because it was in exercise of the core complaint handling functions under the Act.

2. Koopman should be followed because it also concerned an application made under s 55 of the PPIP Act about a disclosure made by the Ombudsman’s Office in response to a complaint made by a member of Parliament. The fact the ADT rather than the Tribunal was the review tribunal in Koopman is not a relevant basis for not following the case.

3. The applicant must have the leave of the Supreme Court to continue with the applicant’s application: s 35A(2).

4. Although the applicant alleges the disclosure was made in bad faith, he has not provided any evidence capable of supporting the allegation.

5. Even if there were evidence of bad faith, the applicant would still need to obtain the leave of the Supreme Court and it would be a matter for the Court to decide under s 35A(3) if there was bad faith when considering whether to grant leave.

6. The applicant has not applied for or been granted leave.

7. In the absence of leave, the applicant’s application should be dismissed under s 55(1)(b) of the NCAT Act.

50. In my view, the relevant case law concerning s 35A supports the respondent’s submissions rather than the applicant’s submissions.

Consideration of case law

Decision in Koopman

51. In Koopman, the Court of Appeal considered whether s 35A prevented the ADT, which was the predecessor of the Civil and Administrative Tribunal for the purposes of the PPIP Act, from having jurisdiction to deal with an application made under s 55 of that Act for a review of conduct of the Ombudsman’s Office.

52. Mr Koopman was the officer responsible for making an original determination under the former Freedom of Information Act 1989 (NSW) to refuse 4 members of Parliament access to information. The members then complained to the Ombudsman’s Office under the Ombudsman Act about the refusal. Mr Koopman provided some personal information about himself to the Office in response to preliminary inquiries made under s 13AA of the Ombudsman Act. The Office disclosed this personal information to the members of Parliament when reporting back on its investigation of their complaint. Mr Koopman then made an application under s 55 of the PPIP Act for a review of the Office’s conduct claiming that the disclosure of the information to the members contravened the IPPs.

53. The Ombudsman submitted, both in the ADT and the Court of Appeal, that s 35A of the Ombudsman Act deprived the ADT of jurisdiction to deal with the review application unless the Supreme Court granted leave for the application to be made. Leave had not been granted.

54. The parties, as noted in Koopman at [3] and [18], did not dispute the following:

1. a review application made under s 55 of PPIP Act involved “civil proceedings” within the meaning of s 35A;

2. the conduct of the Ombudsman’s Office was conduct by the Ombudsman or an officer of the Ombudsman within the meaning of s 35A;

3. the conduct of the Office was “in respect of any act, matter or thing done or omitted to be done for the purpose of executing the [Ombudsman] Act” within the meaning of s 35A.

55. The Court of Appeal held that the ADT did not have jurisdiction to deal with the review application.

56. Meagher JA at [20], with whom Mason P and Santow JA agreed, considered that the PPIP Act did not operate to partially repeal s 35A in its application to the ADT and it was possible to comply with both s 55 of the PPIP Act and 35A. His Honour at [20] held that s 35A “merely imposes a condition precedent to the utilisation of the process set out in s 55 of the PPIP Act, and that, in certain cases only”.

57. Relying on Koopman, the ADT subsequently dismissed an application made under the Anti-Discrimination Act 1977 (NSW) to review certain conduct of the Ombudsman in connection with an investigation conducted under the Police Act 1990 (NSW) (Police Act) that was said to constitute disability discrimination: see QQ v NSW Ombudsman (EOD) [2012] NSWADTAP 34, affirming the decision at first instance in QQ v NSW Ombudsman [2012] NSWADT 109.

Subsequent cases distinguishing Koopman

58. Nonetheless, it is important to note that s 35A does not apply in relation to every act or omission of the Ombudsman or an officer of the Ombudsman. The act or omission must be “done or omitted to be done for the purpose of executing [the Ombudsman] Act or another Act”. This limitation on the acts or omission covered by s 35A has been the focus of subsequent cases.

59. In The Ombudsman v Laughton (2005) 64 NSWLR 114; [2005] NSWCA 339 (Laughton), the Court of Appeal held that s 35A did not apply to an appeal to the Government and Related Employees Appeals Tribunal (GREAT) brought against the Ombudsman because of a decision under s 32 of the Ombudsman Act to appoint another person to a position in the Ombudsman’s Office instead of the appellant. Spigelman CJ held at [26]:

“In my opinion s 35A is concerned with the exercise by the Ombudsman of his or her statutory powers and functions with external effect (such as the Freedom of Information Act 1989 investigation considered in The Ombudsman v Koopman (2003) 58 NSWLR 182.). Section 32 of the Ombudsman Act is not of that character. It is concerned with the employment of staff, an internal matter not arising in the course of an investigation or report or any other such function. An appeal under s 20 of the GREAT Act is not, in my opinion, a civil proceeding ‘in respect of (a) thing done ... for the purpose of executing this or any other Act.’”

60. Similarly, Handley JA held at [38]:

“In my view the words ‘for the purpose of executing this or any other Act’ refer only to what might be called the external exercise or the adverse exercise of powers conferred by the Act in the course of obtaining information or otherwise for the purpose of conducting an authorised investigation, and do not refer to matters of internal administration.”

61. In addition, Basten JA at [45] expressed the tentative view that appeals to GREAT were not “civil proceedings” for the purposes of s 35A. In Kaldas at [341]−[343], Basten JA appeared to step away from this tentative view.

62. In Micro Focus (US) Inc v New South Wales (2011) 195 FCR 506; [2011] FCA 787 (Micro Focus) Jagot J held that s 35A did not apply to proceedings against the Ombudsman for a breach of copyright. Her Honour held at [11] that “the act of copying software onto a computer without the licence of the owner of the copyright in the software is not something which either the Ombudsman Act or the Police Act requires or authorises to be done.” Also, her Honour, applying the reasoning in Laughton, held at [18] that the copying was “not done in the exercise of or refusal to exercise the NSW Ombudsman’s powers of obtaining information or investigating complaints”.

Should Koopman be followed?

63. In Kaldas, the Court of Appeal held that s 35A of the Ombudsman Act extended to proceedings for judicial review in the Supreme Court arising out of an official report made by the Ombudsman following an investigation of wrongful police conduct. In coming to this conclusion, Bathurst CJ and Basten JA (with whom Macfarlan JA agreed) referred to Koopman, Laughton and Micro Focus in their reasoning.

64. Bathurst CJ at [136] noted the claimant in Koopman conceded that a review of the Ombudsman’s decision under s 55 of the PPIP Act was a civil proceeding for the purpose of s 35A of the Ombudsman Act. The Chief Justice also referred at [137]−[142] to Laughton and Micro Focus concerning conduct that is not covered by s 35A. The Chief Justice, after discussing these cases, held at [146] that s 35A precludes proceedings for judicial review to the extent they arise in respect of any act, matter or thing done for the purpose of executing the Ombudsman Act.

65. Basten JA at [339] considered Koopman did little to assist in resolving whether s 35A applied to proceedings for judicial review in the Supreme Court because: (1) the kind of review in question in Koopman, although vested in a tribunal, was not of the same kind as the supervisory jurisdiction of the Supreme Court; and (2) whether the proceedings in Koopman fell within s 35A of the Ombudsman Act was not in contention. Basten JA at [342] also considered Laughton to be of little relevance because it concerned the exercise of a power of appointment rather than the investigation of wrongful conduct. Nevertheless, Basten JA at [343] accepted the limitation stated by Jagot J in Micro Focus at [11] that s 35A did not apply to conduct that was not required or authorised by the Ombudsman Act or Police Act.

66. It will be seen that both Bathurst CJ and Basten JA noted Koopman was decided on the basis that certain legal issues about the application of s 35A were not in dispute between the parties, including in relation to the following:

1. proceedings under s 55 of the PPIP Act are civil proceedings;

2. the conduct concerned (which involved a disclosure to complainants who were members of Parliament made in connection with an investigation by the Ombudsman of their complaint) was done for the purpose of executing the Ombudsman Act.

67. It is arguable that Koopman should not be treated as a binding precedent concerning these legal issues because they were not in dispute. As McHugh J stated in Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [79]:

“Cases are only authorities for what they decide. If a point is not in dispute in a case, the decision lays down no legal rule concerning that issue. If the conceded issue is a necessary element of the decision, it creates an issue estoppel that forever binds the parties. But that is all. The case can have no wider ratio decidendi than what was in issue in the case. Its precedent effect is limited to the issues.”

See also CSR Limited v Eddy (2005) 226 CLR 1; [2005] HCA 64 at [13] (Gleeson CJ, Gummow and Heydon JJ).

68. In my opinion, it would be wrong for several reasons for the Tribunal to approach Koopman on this basis.

69. Firstly, the ADT followed Koopman to dismiss other proceedings against the Ombudsman: see [57] above. Although the Tribunal is not bound to follow earlier decisions of the ADT, it has been the practice of the Tribunal to follow them to maintain confidence in the consistent decision-making of the Tribunal: Ekermawi v Nine Network Australia Pty Limited [2019] NSWCATAD 29 at [35].

70. Secondly, Laughton relied on the fact that Koopman concerned the investigative functions of the Ombudsman as the basis for holding that the appointment function considered in Laughton was not covered by s 35A because (unlike in Koopman) it was not a function exercised for the purpose of executing the Ombudsman Act. Laughton therefore constitutes authority apart from Koopman for the proposition that conduct involving the Ombudsman’s investigative functions in relation to complaints made under the Ombudsman Act are covered by s 35A because the conduct is done for the purpose of executing the Act.

71. Thirdly, the reasoning in Kaldas supports the view that proceedings for an administrative review under s 55 of the PPIP Act are civil proceedings for the purposes of s 35A of the Ombudsman Act.

72. Bathurst CJ at [121] considered that the expression “liable” in s 35A(1), when read with “[c]ivil or criminal proceedings”, refers to liable to be sued rather than, for example, liable in damages or liable for some other remedy. Basten JA at [308] said “the immunity from liability ‘to … proceedings’ is emphatic; combined with the requirement for leave of the Supreme Court even in proceedings alleging bad faith, there is an apparent purpose to preclude any proceedings being brought as of right against the Ombudsman.”

73. Proceedings on an application for an administrative review of conduct done for the purpose of executing the Ombudsman Act are to my mind analogous to proceedings for a judicial review of such conduct (which Kaldas held were precluded by s 35A). Both kinds of proceedings involve suing the Ombudsman or the Ombudsman’s officers using formal legal proceedings to obtain a review by an independent arbiter whose decision binds the parties. The substantive difference between the proceedings is that an administrative review extends to considering both the merits and legality of the conduct while judicial review is limited to considering its legality: ADT Act, s 63(1); Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35−37; [1990] HCA 21 (Brennan J). However, this difference is immaterial for the purposes of s 35A(1). As Bathurst CJ pointed out in Kaldas, the focus of s 35A(1) is whether the Ombudsman or the Ombudsman’s officers are being sued rather than the remedy being sought in the legal proceedings used to sue them.

74. Finally, amendments made after Koopman was decided to legislation concerning the Tribunal suggest that Parliament did not intend to reverse or otherwise alter the interpretation given to s 35A by that case or Laughton.

75. In particular, it is important to consider the effect of the amendments made by the Civil and Administrative Legislation (Repeal and Amendment) Act 2013 (NSW) (NCAT Amendment Act). The NCAT Amendment Act amended a number of Acts (including the PPIP Act and Ombudsman Act) consequent on the abolition of the ADT and various other tribunals and the transfer of their functions to the Tribunal.

76. The amendments made to s 55 of the PPIP Act did not alter the substance of s 55 with respect to the functions of the reviewing tribunal or the preconditions for reviews: see NCAT Amendment Act, Sch 2.118[6]–[8]. The amendments merely updated references to the ADT and related references to reflect the abolition of the ADT, the renaming of the ADR Act and the transfer of the ADT’s functions to the Tribunal. Accordingly, the substitution of the Tribunal for the ADT does not, as the respondent submitted, provide a relevant basis to distinguish Koopman.

77. The amendments made to the Ombudsman Act did not address the interrelationship between s 55 of the PPIP Act and s 35A of the Ombudsman Act despite the decisions in Koopman and Laughton: see NCAT Amendment Act, Sch 2.108. In fact, no amendments were made to s 35A even though amendments were made to other provisions of the Ombudsman Act to update references to the ADT and related references.

78. It is a presumption of statutory interpretation that Parliament does not intend to alter the meaning of a provision that has been judicially interpreted if amendments are made to the provision without altering the interpreted words: Perry Herzfeld and Thomas Prince, Interpretation (2nd ed, 2020, Thomson Reuters) at [8.80]. The presumption has also been applied to the amendment of other provisions of an Act which, when taken together with an interpreted provision that has not been amended, deal exhaustively with a particular subject: Commissioner of Taxation v Energy Resources of Australia Ltd (2003) 135 FCR 346; [2003] FCAFC 314 at [14]−[15] (Ryan and Finkelstein JJ).

79. In my view, the presumption applies to the amendments made to the Ombudsman Act by the NCAT Amendment Act because those amendments, which did not include any amendments to s 35A, dealt exhaustively with the subject of the Tribunal in the Ombudsman’s Act.

80. For all these reasons, the Tribunal should continue to follow Koopman in relation to an application made under s 55 of the PPIP Act for an administrative review of conduct of the Ombudsman or the Ombudsman’s officers unless the application can be relevantly distinguished from the review application considered in Koopman.

Does s 35A prevent the Tribunal from having jurisdiction to deal with the applicant’s application?

81. I agree with the respondent’s submission that the applicant’s application cannot be relevantly distinguished from the review application considered in Koopman.

82. The disclosure claimed in the applicant’s application, like the disclosure in Koopman, was to a member of Parliament in response to a complaint made to the Ombudsman’s Office by the member. As the respondent submitted, complaint handling is a core function of the respondent under the Ombudsman Act. Section 12 of the Ombudsman Act allows complaints to be made to the respondent about the conduct of public authorities including, as previously mentioned, complaints by members of Parliament on behalf of other persons. Moreover, s 29 imposes a duty on the respondent to report to complainants about the results of investigations into their complaints. Although s 12(5) provides that generally a member of Parliament who makes a complaint on behalf of another person is not to be treated as the complainant for the purposes of the PPIP Act, an exception is provided for reports made under s 29.

83. It is clear, to use the language employed by Spigelman CJ and Handley JA in Laughton, that the statutory functions exercised by the respondent and the respondent’s officers had an external effect because they involved investigating and reporting on a complaint made under the Ombudsman Act on behalf of the applicant. They were not functions limited to the internal administration of the Ombudsman’s Office. Consequently, the applicant’s application relates to the execution of functions covered by s 35A of the Ombudsman Act for which the respondent and the respondent’s officers are not liable to be sued without the leave of the Supreme Court.

84. The applicant submits that despite Koopman he was not required to obtain leave from the Supreme Court to make his application because the disclosure claimed in it was made in bad faith. In making this submission, the applicant is presumably relying on the exception to the immunity from civil proceedings given by s 35A(1) that excludes an “act, matter or thing was done, or omitted to be done, in bad faith”.

85. I do not accept the applicant’s submission.

86. In Kaldas at [319], Basten JA suggested conduct is done in bad faith for the purposes of s 35A if it is done for an improper or extraneous purpose. The applicant was unable to point to any direct evidence to suggest that the disclosure claimed in his application was done for a purpose other than to report on the investigation carried out under the Ombudsman Act of the complaint made by the member of Parliament on the applicant’s behalf. Rather, the applicant contended in his oral submissions that there was a pattern of conduct on the part of the Ombudsman Office in relation to other complaints he had made over the years that provided evidence of bad faith generally. In particular, the applicant pointed to a decision of the respondent made in November 2020 not to provide individual complaint responses to the applicant for a period of 12 months unless a complaint warranted action because of the impact of his complaints on the resources of the Ombudsman’s Office.

81. In the absence of evidence to the contrary, I am not prepared to find that the respondent or the respondent’s officers acted in bad faith in making the disclosure. In any event, even if the applicant could point to evidence of bad faith, he would still be required to obtain the leave of the Supreme Court to make his application: Kaldas at [321] (Basten JA). Section 35A(2) clearly contemplates the need for leave if the conduct is done in bad faith because s 35(3) expressly provides that the only ground for granting leave is if the Supreme Court is satisfied that there is substantial ground for the contention of bad faith.

82. Section 35A(2) also prevents the bringing of proceedings for certain conduct that is not done in bad faith (that is, done in good faith). For this purpose, Basten JA in Kaldas at [319]−[321] seemed to draw a distinction between the following 2 kinds of good faith conduct:

1. good faith conduct that is done for the purpose of executing the Ombudsman Act or another Act;

2. good faith conduct that is not done for the purpose of executing the Ombudsman Act or another Act.

89. Kaldas involved the first kind of good faith conduct because the conduct was held to done for the purpose of executing the Ombudsman Act and, as Bathurst CJ noted at [46], it was not contended that the conduct was done in bad faith. The Court of Appeal held that the judicial review proceedings failed because they were not brought with the leave of the Supreme Court pursuant to s 35A(2): at [322] (Basten JA with Macfarlan JA agreeing). Koopman was decided on the same basis, with no mention in the decision of any allegation of bad faith. As a practical matter, it might be thought that s 35A(2) provides an insurmountable barrier to the commencement of proceedings concerning the first kind of good faith conduct because s 35A(3) makes bad faith the sole ground for granting leave.

90. Laughton and Micro Focus both involved the second kind of good faith conduct because the conduct concerned was held not to be for the purpose of executing the Ombudsman Act or any other Act. Proceedings concerning this kind of conduct do not require leave simply because s 35A does not apply to such conduct: Kaldas at [320] (Basten JA).

91. For the reasons given above, the disclosure claimed in the applicant’s application was made for the purpose of executing core complaint handling functions under the Ombudsman Act. As a result, s 35A(2) prevents the application being made without the leave of the Supreme Court even if, as I consider, the disclosure was made in good faith.

92. The absence of leave from the Supreme Court for the applicant’s application is therefore fatal to his application regardless of whether the claimed disclosure was made in good or bad faith.

Conclusion

93. It follows that the Tribunal does not have jurisdiction to deal with the applicant’s application because the Supreme Court has not granted leave under s 35A of the Ombudsman Act for the application to be made.

94. The respondent submits that the applicant’s application should be dismissed under s 55(1)(b) of the NCAT Act. This provision enables the Tribunal to dismiss proceedings before it if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance. The Appeal Panel in DHU v Commissioner of Police, NSW Police Service [2018] NSWCATAP 282 at [33] held that a dismissal of proceedings for want of jurisdiction falls within this power.

95. However, the Appeal Panel in STAR Training Academy Pty Ltd v Commissioner of Police [2021] NSWCATAP 370 at [21] noted:

“While the commencement of proceedings for which the Tribunal does not have jurisdiction may, in appropriate circumstances, be frivolous, vexatious, misconceived or lacking in substance, or a mixture of them, dismissal for lack of jurisdiction is made on a fundamentally different basis: the lack of power to hear the application.”

96. It is not necessary for me to decide whether s 55(1)(b) or an implied power of the kind mentioned in Citta at [21] provides the relevant legal basis for the Tribunal’s dismissal power. On either basis, the appropriate order is for the Tribunal to dismiss the applicant’s application because the Tribunal does not have jurisdiction to deal with it.

Order

97. The Tribunal orders that the application lodged by FTN on 29 March 2023 is dismissed because the Tribunal does not have jurisdiction.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 26 April 2024