Glass v Cessnock City Council - [2024] NSWCATAD 292

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Glass v Cessnock City Council [2024] NSWCATAD 292
Hearing dates: 20 September 2024
Date of orders: 02 October 2024
Decision date: 02 October 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member
Decision:
(1) Pursuant to s 44 (1) of the NCAT Act Kylie Gemmell is joined as a party (applicant) to these proceedings.
(2) By consent the Order made on 17 June 2024 imposing a s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 restriction on the publication or broadcast of the names of the applicants is set aside.
(3) The Tribunal finds that the respondent Council has contravened s 18 of the Privacy and Personal Information Protection Act 1998 (IPP 11).
(4) Pursuant to s 55 (2) of the PPIP Act, on reviewing the conduct of the respondent public sector agency, the Tribunal decides not to take any action on the matter.

Catchwords:
ADMINISTRATIVE LAW - Privacy – Personal Information – disclosure – whether personal information disclosed – meaning of publicly available publication – meaning of personal information – does information or opinion need to be only about the person – is a persons opinion information about them - personal information – meaning of about an individual – disclosure – weight of evidence

Legislation Cited:
Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Government Information (Public Access) Act 2009
Privacy and Personal Information Protection Act 1998
Privacy Act 1988 (Cth)

Cases Cited:
BN v Hornsby Shore Council [2012] NSWADT165
Donnellan v Ku-ring-gai Council (2013) NSWADT 115
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409
DRP v Orange City Council [2020] NSWCATAD 220
GR v Department of Housing (No 2) [2005] NSWADT 301
HP- v – Hunter New England Area Health Services [2009] NSWADT 186
JD v Medical Board (No 2) [2006] NSWADT 345
RD v Department of Education and Training [2005] NSW ADT 195
Telstra Corporation Limited and Privacy Commissioner [2015] AATA 991
University of New South Wales v PG (GD) [2008] NSWADTAP 26
VK v Department of Education and Training (No 2) [2009] NSWADT 286

Texts Cited:
Nil

Category: Principal judgment
Parties: Trent Glass (First Applicant)
Kylie Gemmell (Second Applicant)
Cessnock City Council (Respondent)
Representation:
Solicitors:
Applicants: (self represented)
Respondent: Lindsay Taylor Lawyers
Privacy Commissioner N / A

File Number(s): 2024/00198503
Publication restriction: Nil.

Reasons for decision

These proceedings concern a privacy grievance brought by the applicants Trent Glass and Kylie Gemmell against their Local Government Authority Cessnock City Council.
The grievance concerns the purported disclosure by Council staff of the applicant’s person information to third parties. This is in essence the conduct subject of the privacy grievance.
After considering the conduct in issue the Tribunal finds that the matter relates to personal information of the applicant’s and that on review of the conduct there was a breach of one of the privacy principles (called Information Protection Principles – IPP’s) by Council.

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 292
Decision Date: 02 October 2024

CaseChat Overview and Summary

Glass and two other applicants brought an action against the Cessnock City Council, alleging that the Council breached the Privacy and Personal Information Protection Act 1998 by disclosing their personal information. The applicants sought various remedies including a declaration that the Council contravened section 18 of the Act, a public apology, and compensation. The matter was heard by the Civil and Administrative Tribunal of New South Wales (NCAT).

The key legal issues were whether the information disclosed by the Council was personal information and, if so, whether the disclosure was in breach of the Privacy and Personal Information Protection Act. The court had to determine whether the information was personal information, if it was only about the individual, and if the disclosure contravened the Act. Additionally, the court needed to decide if the opinion of the person was information about them, and if the information needed to be only about the person for it to be personal information.

The court found that the information disclosed by the Council was personal information because it was information or an opinion about the applicants. The court considered that information or opinion about an individual need not be only about the person for it to be personal information. The court also found that the Council's disclosure of the information contravened section 18 of the Privacy and Personal Information Protection Act. However, upon reviewing the conduct of the respondent, the Tribunal decided not to take any action on the matter.

The court set aside an order imposing a restriction on the publication or broadcast of the names of the applicants, joined Kylie Gemmell as a party, and found that the Council had contravened section 18 of the Privacy and Personal Information Protection Act. The court did not take any action on the matter.

Orders

Orders of the court

(1) Pursuant to s 44 (1) of the NCAT Act Kylie Gemmell is joined as a party (applicant) to these proceedings.

(2) By consent the Order made on 17 June 2024 imposing a s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 restriction on the publication or broadcast of the names of the applicants is set aside.

(3) The Tribunal finds that the respondent Council has contravened s 18 of the Privacy and Personal Information Protection Act 1998 (IPP 11).

(4) Pursuant to s 55 (2) of the PPIP Act, on reviewing the conduct of the respondent public sector agency, the Tribunal decides not to take any action on the matter.

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:	Glass v Cessnock City Council [2024] NSWCATAD 292
Hearing dates:	20 September 2024
Date of orders:	02 October 2024
Decision date:	02 October 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member
Decision:	(1) Pursuant to s 44 (1) of the NCAT Act Kylie Gemmell is joined as a party (applicant) to these proceedings. (2) By consent the Order made on 17 June 2024 imposing a s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 restriction on the publication or broadcast of the names of the applicants is set aside. (3) The Tribunal finds that the respondent Council has contravened s 18 of the Privacy and Personal Information Protection Act 1998 (IPP 11). (4) Pursuant to s 55 (2) of the PPIP Act, on reviewing the conduct of the respondent public sector agency, the Tribunal decides not to take any action on the matter.
Catchwords:	ADMINISTRATIVE LAW - Privacy – Personal Information – disclosure – whether personal information disclosed – meaning of publicly available publication – meaning of personal information – does information or opinion need to be only about the person – is a persons opinion information about them - personal information – meaning of about an individual – disclosure – weight of evidence
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Privacy and Personal Information Protection Act 1998 Privacy Act 1988 (Cth)
Cases Cited:	BN v Hornsby Shore Council [2012] NSWADT165 Donnellan v Ku-ring-gai Council (2013) NSWADT 115 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409 DRP v Orange City Council [2020] NSWCATAD 220 GR v Department of Housing (No 2) [2005] NSWADT 301 HP- v – Hunter New England Area Health Services [2009] NSWADT 186 JD v Medical Board (No 2) [2006] NSWADT 345 RD v Department of Education and Training [2005] NSW ADT 195 Telstra Corporation Limited and Privacy Commissioner [2015] AATA 991 University of New South Wales v PG (GD) [2008] NSWADTAP 26 VK v Department of Education and Training (No 2) [2009] NSWADT 286
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Trent Glass (First Applicant) Kylie Gemmell (Second Applicant) Cessnock City Council (Respondent)
Representation:	Solicitors: Applicants: (self represented) Respondent: Lindsay Taylor Lawyers Privacy Commissioner N / A
File Number(s):	2024/00198503
Publication restriction:	Nil.