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FTN v Ombudsman NSW

FTN v Ombudsman NSW

Case [2024] NSWCATAD 111 26 April 2024

Jurisdiction

Statutory Interpretation

Administrative Law

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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

The applicant, whose name has been anonymised because of a non-publication order previously made…

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 Ombudsman NSW

Details

AGLC: FTN v Ombudsman NSW [2024] NSWCATAD 111
Case: [2024] NSWCATAD 111
Decision Date: 26 April 2024

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

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

FTN v Ombudsman NSW [2024] NSWCATAD 111

Most Recent Citation

Boensch v City of Parramatta Council [2024] NSWCATAD 123

Cases citing this decision · 1 of 1 shown

Boensch v City of Parramatta Council
[2024] NSWCATAD 123 Para 40

…the NCAT Act or is based on an implied power of the Tribunal to do what is necessary to ensure it acts within jurisdiction: cf FTN v Ombudsman NSW [2024] NSWCATAD 111 at [94]–[96].…

View all 1 citing cases →

Cases cited in this decision · 22 of 22 shown

FTN v NSW Ombudsman
[2023] NSWCATAD 319 Para 9

…nued 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.…
Unions NSW v New South Wales
[2023] HCA 4 Para 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 so…
Citta Hobart Pty Ltd v Cawthorn
[2022] HCA 16 Para 23

…cessarily 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 h…
Oliver v Nine Network Australia Pty Ltd
[2019] FCA 583 Para 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].…
Ekermawi v Nine Network Australia Pty Limited
[2019] NSWCATAD 29 Para 69

…f 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].…
Kaldas v Barbour
[2017] NSWCA 275 Para 43

…, 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).…
Azshion v Ombudsman NSW
[2016] NSWCATAD 249 Para 29

…r 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).…
QQ v NSW Ombudsman (EOD)
[2012] NSWADTAP 34 Para 57

…estigation 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.…
QQ v NSW Ombudsman
[2012] NSWADT 109 Para 57

…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.…
Micro Focus (US) Inc v New South Wales
[2011] FCA 787 Para 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 copyr…
CSR Ltd v Eddy
[2005] HCA 64

…ces 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-Driv…
Ombudsman v Laughton
[2005] NSWCA 339 Para 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 perso…
GA v Commissioner of Police, NSW Police
[2004] NSWADT 254 Para 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:…
Coleman v Power
[2004] HCA 39 Para 67

…reated 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]:…
Minister for Immigration and Multicultural and Indigenous Affairs v B
[2004] HCA 20 Para 22

…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).…
Commissioner of Taxation v Energy Resources of Australia Ltd
[2003] FCAFC 314 Para 78

…t 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).…
The Ombudsman v Koopman
[2003] NSWCA 277 Para 4

…rticular, 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 ).…
CP v New South Wales Ombudsman
[2002] NSWADT 103 Para 13

…iven 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).…
Attorney-General (NSW) v Quin
[1990] HCA 21 Para 73

…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…
Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd
[1911] HCA 31 Para 23

…: 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).…
DHU v Commissioner of Police, NSW Police Service
[2018] NSWCATAP 282 Para 94

…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.…
Uddin v Truong
[2022] NSWCATAP 323 Para 24

…iction 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].…

Legislation cited in this decision · 10

Government Sector Employment Act 2013 (NSW)
3(1) 2 mentions (from Para 11)
Administrative Decisions Review Act 1997 (NSW)
1 mention
Anti-Discrimination Act 1977 (NSW)
1 mention (from Para 57)
Civil and Administrative Legislation (Repeal and Amendment) Act 2013 (NSW)
1 mention (from Para 75)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 26)
Freedom of Information Act 1989 (repealed) (ACT)
1 mention (from Para 52)
Legal Aid Commission Act 1979 (NSW)
1 mention (from Para 46)
Ombudsman Act 1974 (NSW)
1 mention (from Para 4)
Police Act 1990 (NSW)
1 mention (from Para 57)
Privacy and Personal Information Protection Act 1998 (NSW)
1 mention (from Para 1)

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)