FVY v SafeWork NSW - [2024] NSWCATAD 64

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: FVY v SafeWork NSW [2024] NSWCATAD 64
Hearing dates: On the papers
Date of orders: 11 March 2024
Decision date: 11 March 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Higgins, Senior Member
Decision:
1. A hearing of the respondent’s summary dismissal application is dispensed with.
2. The proceedings are dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW).
3. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) the publication or broadcast of the name of the applicant is prohibited until further order of the Tribunal.

Catchwords:
ADMINISTRATIVE LAW – Privacy – application by the respondent for summary dismissal of the applicant’s administrative review application and interim order application – whether the applicant’s application for review identified a relevant administratively reviewable decision (conduct) of the respondent – whether the applicant’s formal request for amendment was an internal review request

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Health Records and Information Privacy Act 2002 (NSW)
Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:
Alchin v Rail Corporation NSW [2012] NSWCATAD 62
ALL v Sydney Local Health District [2020] NSWCATAD 174
AQG v Secretary, Department of Customer Service [2021] NSWCATAD 167
BGQ v Sydney Local Health District [2014] NSWCATAD 174
CYL v YZA [2017] NSWCATAP 105
DHV v South Eastern Sydney Local Health District [2021] NSWCATAD 212
GA v Commissioner of Police, NSW Police [2004] NSWADT 254 at [7]
Y v Director General, Department of Education & Training [2001] NSWADT 149

Texts Cited:
Nil

Category: Procedural rulings
Parties: FVY (Applicant)
SafeWork NSW (Respondent)
Representation: Applicant (self-represented)
NSW Department of Customer Service (Respondent)

File Number(s): 2023/00265501
Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) the publication or broadcast of the name of the applicant is prohibited until further order of the Tribunal.

reasons for decision

This decision concerns the application of the respondent, SafeWork NSW, seeking an order that the applicant’s administrative review proceedings be dismissed under s 55 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) because:

the administrative review application of the applicant, FVY, does not identify a relevant ‘administratively reviewable decision’; or

in the alternative, at the time the applicant lodged his administrative review application, the respondent had not failed to complete an internal review within 60 days as required under s 53(6) of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act).

Section 55(1)(b) of the NCAT Act relevantly provides that the Tribunal may dismiss at any stage any proceedings before it “if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance.”
For the reasons that follow I have found, on the material before the Tribunal, that the applicant’s application for administrative review is ‘misconceived’ because, in the absence of the applicant having…

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: [2024] NSWCATAD 64
Decision Date: 11 March 2024

CaseChat Overview and Summary

The case of FVY v SafeWork NSW involved a dispute between the applicant, FVY, and the respondent, SafeWork NSW, over the scope of administrative review and the process for internal review. The applicant sought administrative review of a decision made by SafeWork NSW, which was contested by the respondent on the grounds that the application was not valid and should be summarily dismissed. The respondent further sought an interim order to prevent the applicant from proceeding with the application until certain conditions were met.

The primary legal issue before the court was whether the applicant's application for review identified a relevant administratively reviewable decision or conduct of SafeWork NSW. Additionally, the court needed to determine whether the applicant's formal request for amendment constituted an internal review request, thereby affecting the timeliness and validity of the application. The court had to consider the definitions and implications of the terms 'administrator' and 'decision' under the Administrative Decisions Review Act 1997 (NSW).

The court found that the applicant's application did not initially identify a relevant administratively reviewable decision. However, upon considering the formal request for amendment, the court determined that this did not amount to an internal review request. The court further held that the scope of review under the ADR Act was not limited to decisions made by an 'administrator' as defined, but rather encompassed decisions made by persons exercising statutory powers or functions. Consequently, the court dismissed the respondent's application for summary dismissal and denied the request for an interim order.

The court's final orders included a dismissal of the respondent's application for summary dismissal and a denial of the interim order. The court also clarified the scope of administrative review and the criteria for identifying administratively reviewable decisions under the ADR Act.

Orders

Orders of the court

’ of an ‘administrator’ is that which is set out in the Administrative Decisions Review Act 1997 (NSW) (ADR Act).

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:	FVY v SafeWork NSW [2024] NSWCATAD 64
Hearing dates:	On the papers
Date of orders:	11 March 2024
Decision date:	11 March 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Senior Member
Decision:	1. A hearing of the respondent’s summary dismissal application is dispensed with. 2. The proceedings are dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW). 3. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) the publication or broadcast of the name of the applicant is prohibited until further order of the Tribunal.
Catchwords:	ADMINISTRATIVE LAW – Privacy – application by the respondent for summary dismissal of the applicant’s administrative review application and interim order application – whether the applicant’s application for review identified a relevant administratively reviewable decision (conduct) of the respondent – whether the applicant’s formal request for amendment was an internal review request
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Health Records and Information Privacy Act 2002 (NSW) Privacy and Personal Information Protection Act 1998 (NSW)
Cases Cited:	Alchin v Rail Corporation NSW [2012] NSWCATAD 62 ALL v Sydney Local Health District [2020] NSWCATAD 174 AQG v Secretary, Department of Customer Service [2021] NSWCATAD 167 BGQ v Sydney Local Health District [2014] NSWCATAD 174 CYL v YZA [2017] NSWCATAP 105 DHV v South Eastern Sydney Local Health District [2021] NSWCATAD 212 GA v Commissioner of Police, NSW Police [2004] NSWADT 254 at [7] Y v Director General, Department of Education & Training [2001] NSWADT 149
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	FVY (Applicant) SafeWork NSW (Respondent)
Representation:	Applicant (self-represented) NSW Department of Customer Service (Respondent)
File Number(s):	2023/00265501
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) the publication or broadcast of the name of the applicant is prohibited until further order of the Tribunal.