GQ v NSW Department of Education & Training

[2008] NSWADT 212

CITATION:	GQ v NSW Department of Education & Training [2008] NSWADT 212
DIVISION:	General Division
PARTIES:	APPLICANT GQ RESPONDENT NSW Department of Education & Training
FILE NUMBER:	083163
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	9 July 2008
DATE OF DECISION:	1 August 2008
BEFORE:	Handley R - Deputy President
CATCHWORDS:	Whether application late – whether proceedings frivolous, vexatious misconceived or lacking in substance
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Privacy and Personal Information Protection Act 1998 Administrative Decisions Tribunal Act 1997
CASES CITED:	Fitzpatrick v Chief Executive Officer, Ambulance Service of NSW [2003] NSWADT 132 AT v Commissioner of Police, NSW Police (NSWADT, unreported, 14 December 2007) Commissioner of Police, NSW Police v LZ [2008] NSWADTAP 22 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 GR v Director-General, Department of Housing (GD) [2004] NSWADTAP 29 Oceanic Sun Line Shipping Company Inc v Fay (1988) 165 CLR 165
REPRESENTATION:	APPLICANT In person RESPONDENT P Cribb, solicitor
ORDERS:	(1) GQ is not prevented from pursuing her application by reason of the time of the filing of her application for review (2) The Repondent’s application for dismissal of these proceedings pursuant to section 73(5)(h) of the Administrative Decisions Tribunal Act 1997 is refused.

REASONS FOR DECISION

1 This is an application by GQ for the review of a decision of the NSW Department of Education & Training (‘the Department’) made under the Privacy and Personal Information Protection Act 1998 (‘the PPIP Act’) concerning the conduct of departmental officers.

Background

2 The facts are not in dispute. GQ was employed as a temporary teacher at a NSW High School (‘the School’) in term 3 of 2006. Due to the slow processing of the required paperwork resulting in a delay in GQ being paid, the School Principal agreed to advance GQ the sum of $2,500 from School funds, to be recovered in instalments from her salary when this was paid. Although GQ was initially promised work at the School in term 4, she was subsequently told at the end of term 3 that she would be needed in term 4. This placed her in financial difficulties because she had budgeted to repay the $2,500 advanced to her by the School by the end of the School year.

3 GQ is now employed at a Secondary College in Victoria (‘the College’). On 26 June 2007, the Secretary of the School where GQ had previously been employed phoned the College to request GQ’s address and home telephone number. When asked by the Principal of the College why the School needed these details, the Secretary said that GQ owed money to the School. The Principal of the College then spoke to the Principal of the School, who stated that GQ owed money to the School, which needed to be repaid. On 28 June 2007, the Principal of the College spoke to GQ and asked her to contact the Principal of the School, noting her concern that she had been informed of a private financial matter.

4 GQ complained to the Department about the use and disclosure of her personal information. In a letter to GQ dated 1 April 2008, P Cribb, a Senior Legal Officer with the Department, acknowledged that there had been a disclosure of GQ’s personal information in breach of the PPIP Act, albeit not a serous breach. He found no evidence of any systemic issue within the Department and said that following a discussion with the Principal of the School, he was satisfied that officers of the School would not make the same mistake in the future. Mr Cribb apologised to GQ on behalf of the Department but found that the payment of monetary compensation to GQ was not justified.

5 On 20 May 2008, GQ filed an application for a review of this decision by the Tribunal. On 17 June 2008, I conducted a Planning meeting with the parties and a representative of the NSW Privacy Commissioner. At that meeting, two preliminary issues were raised by the Department: (1) that GQ’s application to the Tribunal was ‘out of time’, and (2) that the application was frivolous or vexatious and should be dismissed pursuant to section 75(5)(h) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’). Following some discussion, I set a timetable for the exchange of submissions on these preliminary issues, and it was agreed that I would determine the issues on the basis of these written submissions without conducting a hearing at this stage.

The Relevant Legislation

6 Time. Pursuant to section 55(1)(d) of the ADT Act, a person may apply to the Tribunal for the review of a reviewable decision “only if the application is made within such period as may be prescribed by the rules of the Tribunal following the date on which the internal review is taken to have been finalised”. Section 57(1) provides the Tribunal with a discretion to extend the time for the making of an application “if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application”.

7 Schedule 1 of the Administrative Decisions Tribunal Rules (Transitional)Regulation 1998 contains the ‘ADT Rules’. Clause 15(3) of the ADT Rules states:

(3) For the purposes of section 55(1)(d) of the Act, an application for the review of a reviewable decision must be made to the Tribunal within 28 days from the day on which an internal review is taken to have been finalised under section 53(9) of the Act.
8 Section 40(1) of the ADT Act states: “The provisions of the Act have effect subject to any contrary provision being made in a relevant enactment (whether expressly or impliedly).” The PPIP Act is a relevant enactment. Section 52(4) of the PPIP Act provides that section 53 of the ADT Act , which provides for internal review of administrative decisions, “does not apply to or in respect of conduct” to which Part 5 of the PPIP Act (“Review of certain conduct”) applies. Instead, section 53 of the PPIP Act provides for internal review by public sector agencies, and section 55(1) provides for review of such a decision by the Tribunal:
55(1) If a person who has made an application for internal review under section 53 is not satisfied with:
(a) the findings of the review, or

(b) the action taken by the public sector agency in relation to the application,

the person may apply to the Tribunal for a review of the conduct that was the subject of the application under section 53.
9 Section 55(2) sets out the Tribunal’s powers on a review:
(2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders:
(a) subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct,

(b) an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice,

(c) an order requiring the performance of an information protection principle or a privacy code of practice,

(d) an order requiring personal information that has been disclosed to be corrected by the public sector agency,

(e) an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant,

(f) an order requiring the public sector agency not to disclose personal information contained in a public register,

(g) such ancillary orders as the Tribunal thinks appropriate.

10 Frivolous or vexatious. Section 75(5)(h) of the ADT Act states:
The Tribunal may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance.
Submissions

11 The Department. In the absence of any time for the filing of applications for review by the Tribunal being specified in the PPIP Act, the Department relies on section 55(1)(d) of the ADT Act and clause 15(3) of the ADT Rules and submits that GQ’s application for review should have been filed within 28 days from the day on which the internal review was finalised on 1 April 2008. In the absence of any reasonable explanation for the delay, the Department (impliedly) submits that GQ’s application should be dismissed as being out of time.

12 The Department also submits that GQ’s application is frivolous or vexatious. The application is frivolous having been brought in circumstances where the Department recognised the breach under the PPIP Act and apologised. Moreover, the disclosure in question took place in the course of the Department’s attempts to contact GQ for legitimate purposes.

13 The application is vexatious in so far as it is “brought in anger in response to what the Applicant perceives to be ‘invasive and bullying tactics’”. In relation to the monetary compensation sought by GQ, the Department submits that pursuant to section 55(4)(b) of the PPIP Act, the Tribunal could only make an order for the payment of compensation under section 55(2)(a) if the Tribunal were satisfied “that the applicant has suffered financial loss, or psychological or physical harm” because of the Department’s conduct. GQ has not provided evidence to substantiate any such loss or harm, thereby precluding such an order. The Department referred to the decision of the Appeal Panel in Commissioner of Police, NSW Police v LZ [2008] NSWADTAP 22 (‘LZ’), at paragraph 9, where Deputy President Hennessy discussed the meaning of ‘vexatious’, which includes proceedings that are “devoid of any practical effect”. The Department submitted that GQ’s proceedings are devoid of any practical effect and should be dismissed by the Tribunal.

14 The Privacy Commissioner. The Privacy Commissioner submits that section 55(1)(d) of the ADT Act does not apply to an application to the Tribunal for the review of a decision under section 55 of the PPIP Act. The Commissioner submits the Tribunal should follow the reasoning of Deputy President Hennessy in Fitzpatrick v Chief Executive Officer, Ambulance Service of NSW [2003] NSWADT 132 (‘Fitzpatrick’) (see especially paragraphs 16 to 19) that there is no time limit for the bringing of an application under section 55(1) of the PPIP Act. Section 52(4) of the PPIP Act “ousts” section 53 of the ADT Act. An ‘internal review’ for the purposes of section 55(1)(d) of the ADT Act is an internal review conducted under section 53 of the ADT Act and not under section 53 of the PPIP Act. Thus, there is no time limit for the bringing of an application for review under section 55 of the PPIP Act.

15 The Commissioner submits that the recent decision in AT v Commissioner of Police, NSW Police (NSWADT, unreported, 14 December 2007) should not be followed. In that decision, Judicial Member Higgins said (at paragraph 25) that she found it difficult to accept that Parliament would have intended that there should be no time limit within which a person could seek external review of the conduct of an agent pursuant to the PPIP Act. She therefore took the view (paragraph 26) that section 52(4) of the PPIP Act should be construed as only referring to the finalisation of an internal review application under section 53 of the PPIP Act, and as not affecting the time for the making of an application prescribed by section 55(1)(d) of the ADT Act and clause 15(3) of the ADT Rules. The Commissioner noted that an appeal against this decision has been filed for determination by the Appeal Panel of the Tribunal.

16 GQ. GQ states that she did not receive the Department’s letter dated 1 April 2008 until 11 April 2008. She was only able to obtain an appointment with a solicitor on 13 May 2008 to obtain legal advice about the matter, and was advised in writing of her options on 20 May 2008. GQ said the Tribunal should adopt the Privacy Commissioner’s submissions and apply the reasoning in Fitzpatrick that there is no time limit for bringing an application for review under section 55 of the PPIP Act.

Discussion

17 (1) The time for making an application. In my view, I should adopt the submissions of the Privacy Commissioner and follow the reasoning in Fitzpatrick. The internal review to which section 55(1) of the PPIP Act refers is an internal review under the PPIP Act to which, pursuant to section 52(4), the provisions of the ADT Act do not apply. Thus, the references in section 55(1)(b) and (d) of the ADT Act to an internal review do not include an internal review under the PPIP Act. The time limit for the making of an application prescribed by section 55(1)(d) of the ADT Act and clause 15(3) of the ADT Rules does not, therefore, apply. As Deputy President Hennessy concluded in Fitzpatrick, at paragraph 18, “there are no time limits for the lodging of privacy applications with the Tribunal”.

18 I have deliberately not undertaken a further analysis of the relevant law since this is a matter that is to be addressed by the Appeal Panel in the appeal against the decision in AT v Commissioner of Police, to which reference is made above. I note the hearing in that matter has been scheduled for 20 August 2008.

19 In the event that I am wrong in my conclusion and the time limit prescribed by section 55(1)(d) of the ADT Act and clause 15(3) of the ADT Rules does apply, I am satisfied that GQ has provided a reasonable explanation for the delay in filing her application, and to that end I would exercise my discretion pursuant to section 57(1) to extend the time for the filing of her application to the Tribunal to 20 May 2008. GQ has stated that she did not receive the Department’s internal review determination dated 1 April 2008 until 11 April 2008, and she was only able to see a solicitor about the matter on 13 May 2008 who advised of her options on 20 May 2008. On receiving that advice, she telephoned the Tribunal and immediately filed her review application. I am satisfied that this is a reasonable explanation for the purposes of section 57(1).

20 Thus, in relation to the first issue, I find that GQ is not prevented from pursuing her application by reason of the time of the filing of her application for review.

21 (2) Are the proceedings frivolous and vexatious? The Tribunal’s power to dismiss proceedings under section 73(5)(h) of the ADT Act must be exercised with extreme caution, especially where the application is made prior to the applicant having a proper opportunity to present evidence in the substantive hearing: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, at 129 (per Barwick CJ); GR v Director-General, Department of Housing (GD) [2004] NSWADTAP 29, at paragraph 9.

22 In its submissions, the Department referred to ‘frivolous’ as meaning “of little weight, worth or importance; not worthy of serious notice”, and to ‘vexatious’ as meaning “1. causing vexation; vexing; annoying. 2. Law (of legal actions) instituted without sufficient grounds, and serving only to cause annoyance” (Macquarie Concise Dictionary (3rd edition)). Proceedings can be regarded as ‘vexatious’ if they are instituted with the intention of annoying, harassing or embarrassing the respondent, if they are devoid of any practical legal effect, or are manifestly untenable. In the Appeal Panel decision in LZ, at paragraph 13, Deputy President Hennessy referred to Deane J’s judgment in Oceanic Sun Line Shipping Company Inc v Fay (1988) 165 CLR 165, at 247, where he said that “‘vexatious’ should be understood as meaning productive of serious and unjustified trouble and harassment”.

23 The Department submits that the proceedings are frivolous, having been brought in circumstances where the Department recognised the breach under the PPIP Act and apologised. Moreover, the disclosure took place in the course of the Department’s attempts to contact GQ for legitimate purposes. The Department submits the proceedings are vexatious in that they are devoid of any practical effect, since GQ has not provided any evidence to substantiate her claim for monetary compensation. In my view, the latter submission is premature since the parties have not yet been called upon to provide details of the evidence upon which they intend to rely. I am also not satisfied that the proceedings have been brought by GQ with the intention of annoying, harassing or embarrassing the Department.

24 As to whether the proceedings are frivolous, the view I have formed from admittedly limited contact with the parties, given the relatively early stage in the proceedings, is that the proceedings are of importance to GQ, who is genuinely seeking more than the apology provided by Mr Cribb in his internal review determination dated 1 April 2008.

25 I am therefore not satisfied that I should exercise the discretion in section 73(3)(h) of the ADT Act to dismiss the proceedings.

26 After publication of this decision, it will be necessary to arrange a further Planning Meeting with the parties to discuss other outstanding issues and a timetable for the exchange of submissions on those issues.

Orders

(1) GQ is not prevented from pursuing her application by reason of the time of the filing of her application for review

(2) The Repondent’s application for dismissal of these proceedings pursuant to section 73(5)(h) of the ADT Act is refused.