FTO v Transport for NSW - [2023] NSWCATAD 159

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: FTO v Transport for NSW [2023] NSWCATAD 159
Hearing dates: 29 May 2023
Date of orders: 19 June 2023
Decision date: 19 June 2023
Jurisdiction: Administrative and Equal Opportunity Division
Before: P French, Senior Member
Decision:
(1) Application for administrative review no. 2023/00110422 is dismissed pursuant to s55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW).

Catchwords:
ADMINISTRATIVE LAW – administrative review of a reviewable decision – Privacy and Personal Information Protection Act 1998 – Health Records and Information Privacy Act 2002 (NSW) – summary dismissal – NCAT’s jurisdiction to conduct administrative review – whether the applicant made a request for internal review – where no internal review conducted by the agency – whether request for internal review was ‘competent’

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW) – s 9
Civil and Administrative Tribunal Act 2013 (NSW), ss 4, 28, 30, 39, 55
Civil and Administrative Tribunal Rules 2014 (NSW), s 24
Government Information (Public Access) Act 2013 (NSW)
Health Records and Information Privacy Act 2002 (NSW)
Privacy and Personal Information Protection Act 1998 (NSW), ss 4, 15, 52, 53, 55

Cases Cited:
Alchin v Rail Corporation NSW [2012] NSWADT 142
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256
CYL v YZA [2017] NSWCATAP 105
General Steel Industry v Commissioner for Railways (1964) 112 CLR 125
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
PC v University of New South Wales (GD) [2005] NSWADTAP 72
Y v Director General, Department of Education & Training [2001] NSWADT 149

Texts Cited:
Nil

Category: Principal judgment
Parties: FTO (Applicant)
Transport for NSW (Respondent)
Representation:
Solicitor
P Lay, Transport for NSW (Respondent)
FTO (Self-represented)

File Number(s): 2023/00110422
Publication restriction:
The disclosure of the name of the applicant is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). The applicant is to be known by the pseudonym FTO.
Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

The putative substantive application before the Tribunal is an application by FTO (the applicant) under section 55 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) for an administrative review under section 55(1) of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) of conduct by Transport for NSW (the agency) which he alleges was in contravention of Information Protection Principles contained in Part 2, Division 1, of the PPIP Act and in Schedule 1 of the Health Records and Information Privacy Act 2002 (NSW) (HRIP Act). This application was made to the Tribunal on 4 April 2023 (the substantive application).
However, the application that is before me for determination is an application by the agency for summary dismissal of the substantive application pursuant to s 55(1)(b) of the Civil…

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.

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Details

Case: [2023] NSWCATAD 159
Decision Date: 19 June 2023

CaseChat Overview and Summary

The case involved the First Information Technology Officer (FTO) who sought administrative review of a decision made by Transport for NSW under the Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002 (NSW). The dispute arose from an alleged failure to comply with an information request, and the First Information Technology Officer sought review through the Civil and Administrative Tribunal (CAT). The primary issue before the tribunal was whether the FTO had made a proper request for internal review prior to initiating proceedings with the CAT. Furthermore, the tribunal had to determine whether the CAT had jurisdiction to conduct the administrative review where no internal review had been conducted by the agency.

The tribunal found that the FTO had not made a competent request for internal review, as required by the legislation. The FTO had not followed the proper procedural steps that would have triggered an internal review by Transport for NSW. Without a valid request for internal review, the tribunal concluded that it lacked the jurisdiction to conduct the administrative review of the decision. The tribunal emphasised that the internal review process is a mandatory prerequisite to seeking external review and that failure to comply with this requirement can lead to summary dismissal of the application.

As a result, the tribunal dismissed the application for administrative review under section 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW). The tribunal held that the failure to request an internal review rendered the application incompetent, and thus, the tribunal did not have the authority to review the decision made by Transport for NSW. The tribunal’s decision underscores the importance of adhering to statutory requirements and procedural mandates when seeking administrative review. The tribunal's decision was clear and final, with no further orders necessary beyond the dismissal of the application.

Orders

Orders of the court

(1) Application for administrative review no. 2023/00110422 is dismissed pursuant to s55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	FTO v Transport for NSW [2023] NSWCATAD 159
Hearing dates:	29 May 2023
Date of orders:	19 June 2023
Decision date:	19 June 2023
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	P French, Senior Member
Decision:	(1) Application for administrative review no. 2023/00110422 is dismissed pursuant to s55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW).
Catchwords:	ADMINISTRATIVE LAW – administrative review of a reviewable decision – Privacy and Personal Information Protection Act 1998 – Health Records and Information Privacy Act 2002 (NSW) – summary dismissal – NCAT’s jurisdiction to conduct administrative review – whether the applicant made a request for internal review – where no internal review conducted by the agency – whether request for internal review was ‘competent’
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) – s 9 Civil and Administrative Tribunal Act 2013 (NSW), ss 4, 28, 30, 39, 55 Civil and Administrative Tribunal Rules 2014 (NSW), s 24 Government Information (Public Access) Act 2013 (NSW) Health Records and Information Privacy Act 2002 (NSW) Privacy and Personal Information Protection Act 1998 (NSW), ss 4, 15, 52, 53, 55
Cases Cited:	Alchin v Rail Corporation NSW [2012] NSWADT 142 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 CYL v YZA [2017] NSWCATAP 105 General Steel Industry v Commissioner for Railways (1964) 112 CLR 125 Hossain v Minister for Immigration and Border Protection [2018] HCA 34 PC v University of New South Wales (GD) [2005] NSWADTAP 72 Y v Director General, Department of Education & Training [2001] NSWADT 149
Texts Cited:	Nil
Category:	Principal judgment
Parties:	FTO (Applicant) Transport for NSW (Respondent)
Representation:	Solicitor P Lay, Transport for NSW (Respondent) FTO (Self-represented)
File Number(s):	2023/00110422
Publication restriction:	The disclosure of the name of the applicant is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). The applicant is to be known by the pseudonym FTO. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.