FTN v Ombudsman NSW

Case [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…

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AGLC
FTN v Ombudsman NSW [2024] NSWCATAD 111
Case
[2024] NSWCATAD 111
Decision Date

CaseChat Overview and Summary

The case of FTN v Ombudsman NSW concerns an application brought by FTN against the Ombudsman of New South Wales. The application was made to the Civil and Administrative Tribunal (NCAT) in New South Wales, seeking a review of the conduct of the Ombudsman and the officers of the Ombudsman in relation to a privacy matter. FTN contended that the conduct of the Ombudsman and its officers was improper, and that the Tribunal had jurisdiction to review that conduct. The Ombudsman, on the other hand, argued that the Tribunal did not have jurisdiction to review its conduct, relying on section 35A of the Ombudsman Act 1974 (NSW).

The primary legal issue before the Tribunal was whether it had the jurisdiction to review the conduct of the Ombudsman and its officers. The Tribunal was required to consider the scope of its jurisdiction under the Administrative Decisions (Judicial Review) Act 1997 (NSW) and the Ombudsman Act 1974 (NSW), and in particular, the effect of section 35A of the Ombudsman Act. The Ombudsman argued that section 35A of the Ombudsman Act conferred immunity from judicial review of its conduct, and that the Tribunal was therefore without jurisdiction to review its conduct. FTN contended that section 35A did not confer immunity from review, and that the Tribunal did have jurisdiction.

The Tribunal found that section 35A of the Ombudsman Act did confer immunity from judicial review of the conduct of the Ombudsman and its officers. The Tribunal held that the immunity extended to conduct that was performed in the course of carrying out the functions and duties of the Ombudsman under the Ombudsman Act, including conduct relating to privacy matters. The Tribunal concluded that it did not have jurisdiction to review the conduct of the Ombudsman and its officers, and dismissed the application brought by FTN. The Tribunal found that the Ombudsman and its officers were immune from review of their conduct in relation to the privacy matter, and that the application was therefore without merit.

The Tribunal dismissed the application lodged by FTN on 29 March 2023, finding that it did not have jurisdiction to review the conduct of the Ombudsman and its officers. The Tribunal held that section 35A of the Ombudsman Act conferred immunity from review of the conduct of the Ombudsman and its officers, and that the immunity extended to conduct relating to privacy matters. FTN's application was therefore dismissed, and the Tribunal found that it did not have jurisdiction to review the conduct of the Ombudsman and its officers.

Orders

Orders of the court

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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