Administrative law – administrative review of a reviewable decision – Privacy and Personal Information Protection Act 1998 – Health Records and Information Privacy Act 2002 (NSW) – Federal diversity jurisdiction – applicant is a resident of another state – respondent is an entity of the State of New South Wales - Tribunal lacks jurisdiction to determine the claim for damages under s 55(2)(a) of the Privacy and Personal Information Protection Act 1998 as this would involve an exercise of judicial power – claim for damages withdrawn and dismissed
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[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.
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Details
AGLC
Fto v Transport for NSW [2023] NSWCATAD 340
Case
[2023] NSWCATAD 340
Decision Date
CaseChat Overview and Summary
Fto initiated legal proceedings against Transport for New South Wales in the Civil and Administrative Tribunal of New South Wales, asserting that personal information had been unlawfully disclosed, in violation of the Privacy and Personal Information Protection Act 1998 (Cth) and the Health Records and Information Privacy Act 2002 (NSW). The applicant, Fto, is a resident of a state other than New South Wales, whereas the respondent, Transport for New South Wales, is an entity of the State of New South Wales. The primary contention was whether the Tribunal had the authority to adjudicate on the claim for damages, as outlined in section 55(2)(a) of the Privacy and Personal Information Protection Act 1998.
The central legal issue before the Tribunal was whether it possessed the jurisdiction to entertain a claim for damages under section 55(2)(a) of the Privacy and Personal Information Protection Act 1998. The Tribunal examined the scope of its powers under section 55(1) of the NSW Civil and Administrative Tribunal Act 2013 (NSW) and considered whether determining such a claim would require the exercise of judicial power. It was determined that adjudicating on the claim for damages would indeed necessitate the exercise of judicial power, which is outside the Tribunal’s jurisdictional remit.
Consequently, the Tribunal concluded that it did not have the jurisdiction to decide the claim for damages as it would involve an exercise of judicial power, a function reserved for courts and not administrative bodies. Accordingly, the claim for damages under section 55(2)(a) of the Privacy and Personal Information Protection Act 1998 was withdrawn and dismissed. The Tribunal also ruled that no further action would be taken on the matter.
Orders
Orders of the court
1. Pursuant to s 55(1) of the NSW Civil and Administrative Tribunal Act 2013 (NSW), the claim for damages under s 55(2)(a) of the Privacy and Personal Information Protection Act 1998 (NSW) is withdrawn and dismissed.