Howard v Department of Communities and Justice Housing

[2023] NSWCATAD 188

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Howard v Department of Communities and Justice - Housing [2023] NSWCATAD 188

Hearing dates:

17 May 2023

Date of orders:

16 June 2023

Decision date:

16 June 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

P French, Senior Member

Decision:

Application for administrative review no. 2023/00103385 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 – 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’ – where applicant applied for external review before 60 days from the date of her internal review request had lapsed

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)

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:

Morgan Howard (Applicant)

Department of Communities and Justice - Housing (Respondent)

Representation:

Solicitor
Z Dunford with P Hepplewhite (Respondent)

Other

Morgan Howard (Self-represented)

File Number(s):

2023/00103385

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. The putative substantive application before the Tribunal is an application by Morgan Howard (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 the Department of Communities and Justice - Housing (the agency) which she alleges was in contravention of an Information Protection Principle contained in Part 2, Division 1, of the PPIP Act. This application was made to the Tribunal on 14 March 2023 (the substantive application).

2. 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 and Administrative Tribunal Act 2013(NSW) (NCAT Act) on the ground that the Tribunal does not have jurisdiction to deal with it. This application was made by an Application for stay or interim order dated 2 May 2023 (the summary dismissal application).

3. For the reasons set out following, I have determined to dismiss the substantive application because the Tribunal does not have jurisdiction to deal with it. The applicant impermissibly made her application for administrative review before 60 days had elapsed from the date, she contends she first made her internal review request to the agency. The enabling legislation did not permit the matter to be brought to NCAT’s attention for decision on the date the application was made.

Procedural history

4. The substantive application first came before the Tribunal for a Case Conference on 24 April 2023. The dispute was not resolved at that time. The agency indicated to the Tribunal its’ intention to make an application for the summary dismissal of the substantive application on the basis that the Tribunal did not have jurisdiction to deal with it. The Tribunal made directions for the filing and service of that application and for the filing and exchange of submissions in relation to it. It otherwise adjourned the proceeding for a hearing of that application.

5. I note that when the substantive application was filed it was treated by the Deputy Divisional Registrar as an application for administrative review under the Government Information (Public Access) Act 2009 (NSW). That has led to controversy between the applicant and the Registry. It is unnecessary to recount this in any detail. It is sufficient to state that as at the date of the hearing of the summary dismissal application the parties agree that the substantive application is to be treated as an application for administrative review under the PPIP Act.

Material considered

6. I have considered the following material in reaching my determination.

Applicant

1. Document dated 14 March 2023 (the substantive application),

2. Submissions dated 24 April 2023,

3. Submissions dated 8 May 2023 and Annexures A to E,

Agency

1. Application for stay or interim order dated 8 May 2023,

2. Submissions dated 5 May 2023 and Annexures A to F.

Hearing

7. The hearing of the summary dismissal application was conducted in person. Ms Morgan attended the hearing self-represented. Ms Zoe Dunford, in house solicitor, appeared for the agency. The parties had the opportunity to present their respective cases and make final submissions.

Material facts

8. The application for administrative review and the submissions filed by the applicant in relation to the summary dismissal application are lengthy and discursive. For present purposes it is only necessary to distil the following from them:

a.   the applicant is a longstanding applicant to the agency for the allocation of social housing. She made her first application for social housing in 2002,

b.   originally, the applicant sought the allocation of social housing in inner Sydney,

c.   at some time before 2015 she amended her application to apply for an allocation of social housing in the Byron Bay region where she was living at that time. This resulted in the agency designating the Byron Bay region the ‘allocation zone’ in which social housing was sought by the applicant,

d.   in 2015 or 2016 (she is not sure which year) the applicant returned to live in Sydney. She contends that she notified the agency of her change of address at that time by lodging a ‘change of circumstances form’,

e.   the applicant contends that she has been homeless and sleeping rough in inner Sydney for all or most of the time since she returned to Sydney,

f.   in January 2023, in the lead up to the Sydney Gay and Lesbian Mardi Gras on 25 February 2023 and the World Pride festival, the applicant sought assistance with temporary accommodation from a social support provider out of a concern that crowds would mean that she would lose access to safe(r) sleeping locations,

g.   the provider to whom she applied informed the applicant that she was not eligible for such assistance because she was not approved as eligible for social housing or eligible for social housing in the inner Sydney allocation area or both,

h.   in response, the applicant made enquiries with the agency and established:

i.   her eligibility for social housing had been suspended,

ii.   the allocation zone for social housing recorded on her file was the Byron Bay region,

iii.   the agency required her to file a change of circumstances form   before it would process her request to have her eligibility for social housing reinstated and her allocation zone changed to inner Sydney. Certain supporting documents had to be provided with that form, including a current medical assessment,

1. on or about 20 January 2023 the applicant attempted to lodge a change of circumstances form with the agency at its Redfern office. She did not provide a current medical assessment with the form. The agency refused to accept the form on this basis,

j.   On or about 1 February 2023 the applicant attempted to lodge a change of circumstances form with the agency again, this time via email. By email dated 6 February 2023 the delegate of the agency advised the applicant that the agency did not accept the form because it was not accompanied by a current medical assessment,

j.   in response to advice, on 7 February 2023, the applicant made a communication to the agency via its ‘feedback’ email address. That communication included the following words:

…

1. Request for INTERNAL REVIEW of Decision – to stonewall attempt to lodge that amended version of “Change of Circumstance” form by pretending that attempt to lodge “Change of Circumstances” form was a “complaint” – thus being a REFUSAL to scan the attached amended version of “Change of Circumstances” form onto the HOUSING file of which I am subject and a RFUSAL to update/amend FALSE information held on FACS/NSW Department of Communities and Justice database – being FALSE STATEMENT that this HOUSING applicant resides in Byron Bay – despite FACS being informed (including in 2016) that I ceased residing in Byron Bay and returned to residing in Inner Sydney in winter 2016.

…

1. Request for INTERNAL REVIEW of DECISION

Date of decision:      6 Feb 2023

Name of decision maker:   ANONYMOUS (name not provided) employee of FACS Feedback Unit.”

Decision/s:   (Deemed due to failure – and pretence that lodging FORM was a “complaint”). REFUSE to scan a copy of amended version of “Change of Circumstance” FORM – completion and lodgement being set as an (unlawful) condition of FACS/HOUSING database – change allocation zone from Byron Bay to inner City Sydney (despite being informed in 2016 and 2023 that the Housing Applicant ceased residing in Byron Bay and returned to residing in Inner City Sydney in 2016)

..

The applicant refers to this email in her submissions as her ‘first request for internal review’.

k.   on or about 13 February 2023 the applicant made enquiries of the agency about a response to her email of 7 February 2023 and was advised that given the nature of her ‘feedback’ the email should have been addressed to a ‘housing applications’ email address. She then forwarded her email of 7 February 2023 to that address. The applicant refers to her email of 13 February 2023 as her ‘second request for internal review’,

l.   by email dated 2 March 2023 a delegate of the agency communicated with the applicant in relation to her request to have her eligibility for social housing reinstated and allocation zone changed to inner Sydney. That communication is not in evidence,

m.   by email dated 4 March 2023 the applicant responded to that email to an ‘InnercitySupports’ email address. Her reply email contains, among other things, the following words:

…

1. REPEAT of request for Internal Review Decision

…

… this unsuccessful HOUSING APPLICANT who has been obliged to compose another mountain of correspondence because employees of Inner City Assessment Team REFUSE (Deemed due to failure to do so within time frame) change allocation zone from Byron Bay to Inner City Sydney – despite being repeatedly informed that I ceased residing in Byron Bay and returned to residing in Sydney in 2016 – and produced Centrelink card and driver license as PROOF of residing in Sydney City Council LGA

…

As previous medical certs and common sense makes evident that orthopaedic injuries are PERMANENT – I am aged [age], I will be arguing (at NCAT) that expecting ANOTHER lot of Medical Assessments – just to do a change of allocation zone back to original allocation is not a reasonable request/expectation …

The applicant refers to this email in her submissions as her ‘third internal review request’.

n.   on the same day (being 4 March 2023) the applicant sent a copy of the email referred to at paragraph m to another agency email address (“ATS124’). The applicant refers to this email in her submissions as her ‘fourth internal review request.’

9. I pause at this point to note that in her administrative review application the applicant did not refer to her emails of 7 and 13 February 2023 and 4 March 2023.

o.   on or about 7 March 2023 the applicant attended the agency’s Redfern office to make further inquiries about her eligibility for social housing allocation in inner Sydney. She contends that an officer of the agency (again) told her that no change of circumstances form was processed in 2015 or 2016 because she had not lodged required supporting information. She contends that she was also informed (again) that this had resulted in the suspension of her application for social housing. She contends that the officer amended her address details at that time. However, the officer advised her that her allocation zone could not be changed by updating her address details and that to achieve this she would need to lodge a change of circumstances form with the required supporting information which included a current medical assessment,

p.   on or about 14 March 2023 the applicant received a phone call in response to her enquiries from an officer of the agency’s Lismore Office. The applicant contends that she was informed by that staff member that the agency did not have social housing her current Byron Bay allocation zone and that she would need to apply to non-government social housing providers who had operations in that allocation zone. Alternatively, if she sought allocation of social housing in inner Sydney, she would need to complete a change of circumstances form and supply the required supporting information which included a current medical assessment,

1. I pause at this point to note that it is the conduct set out in paragraphs o and p that is referred to in the applicant’s administrative review application. The applicant has not filed any evidence of a written request for internal review of that conduct specifically,

q.   to date the applicant has not filed a change of circumstances form and objects to doing so, although she explained at the hearing that she has now taken some steps, or has an intention, to consult a medical practitioner to obtain the required medical assessment,

r.   it is the applicant’s contention that her social housing allocation zone should be automatically updated by the provision of her current address to the agency. It is the agency’s decision not to automatically change her social housing allocation zone on the provision of her current address details which is the impugned conduct of the agency. The applicant contends that it is a contravention of IPP 8 (s 15 of the PPIP Act).

Applicable law

10. Part 3 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out NCAT’s jurisdiction. It includes such jurisdiction and functions as may be conferred or imposed on it by or under the NCAT Act or any other legislation: 28(1). It includes NCAT’s administrative review jurisdiction: s 28(2)(b).

11. Section 30 of the NCAT Act sets out NCAT’s administrative review jurisdiction. It relevantly provides that the ADR Act provides for the circumstances in which NCAT has administrative review jurisdiction over a decision of an administrator: s 30(1). Section 30(2) provides that the Tribunal also has jurisdiction in proceedings for the exercise of its administrative review jurisdiction to make ancillary decisions. An “ancillary decision” is defined in s 4 of the NCAT Act to mean a decision made by the Tribunal under legislation that is preliminary to, or consequential on, a decision determining proceedings, and includes a decision concerning whether the Tribunal has jurisdiction to deal with a matter.

12. Part 4 of the NCAT Act sets out the practice and procedure of the Tribunal.

13. Division 1 of that Part deals with the commencement of proceedings. Section 39 in that Division explains what constitutes “an application”:

1. What constitutes an application

For the purposes of this Act, an

“application” to the Tribunal includes a complaint, referral or other mechanism (however expressed) by means of which enabling legislation provides for a matter to be brought to the attention of the Tribunal for a decision.

14. Section 55 in that Part deals with the dismissal of proceedings. It relevantly provides:

1. Dismissal of proceedings

2. The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances –

(a)   if the applicant or appellant (or if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate,

(b)   if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,

…

15. Part 6 of the Civil and Administrative Tribunal Rules 2014 (NSW) deals with the commencement of proceedings. Rule 24 in that Part provides relevantly:

1. Administrative Review Applications

2. An administrative review application must be –

(a)    in or to the effect of the approved form, and

(b)   duly completed, and

(c)   lodged at the Registry, and

(d)   accompanied by the applicable fee (if any) for the application.

…

1. Unless the Tribunal grants an extension under section 41 of the Act an application must be made –

(a)   in the case where the enabling legislation specifies the period within which the application is to be made – within the period specified, or

(b)   in any other case – by the end of the default application period.

1. The “default application period” for the purposes of subrule (3)(b) is –

…

(a1) in the case of an administrative review application under section 55 of the Privacy and Personal Information Protection Act 1998 – the period of 28 days after –

1. if an internal review under section 53 of that Act is completed within 60 days from the day on which the application for the internal review was received by the public sector agency concerned – the day on which the applicant was notified of the result of the internal review (whichever is the later), or

2. if an internal review under section 53 of that Act is not completed within that 60 day period – the day on which the 60 day period expires or the day on which the applicant was notified of the result of the review (whichever is the later) …

   16. Part 2 of ADR Act also deals with the administrative review jurisdiction of the Tribunal. In brief, and relevantly, s 7 in that Part provides that an administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction. Section 9 in that Part provides that the administrative review jurisdiction is conferred on NCAT if enabling legislation provides that applications may be made to NCAT for administrative review under the ADR Act of any such decision (or class of decisions) made by an administrator.

   17. Section 4 of the PPIP Act contains the definition of “personal information” for the purposes of that Act. It also sets out the circumstances in which personal information is ‘held’ and ‘collected’ by a public sector agency. In this respect it relevantly provides:

1. Definition of “personal information”

2. In this Act,

“personal information” means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.

…

1. For the purposes of this Act, personal information is “held” by a public sector agency if –

(a)   the agency is in possession or control of the information, …

1. For the purposes of this Act, personal information is not “collected” by a public sector agency if the receipt of the information by the agency is unsolicited.

   18. Part 2 of the PPIP Act contains the Information Protection Principles (IPPs). Relevantly s 15 deals with the alteration of personal information at the request of the individual to whom it relates:

2. Alteration of personal information

3. A public sector agency that holds personal information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the personal information –

(a)   is accurate, and

(b)   having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to hat purpose, is relevant, up to date, complete and not misleading.

1. If a public sector agency is not prepared to amend personal information in accordance with a request by the individual to whom the information relates, the agency must, if so, requested by the individual concerned, take such steps as are reasonable to attach to the information, in such a manner as is capable of being read with the information, any statement provided by that individual of the amendment sought.

   19. Part 5 of the PPIP Act provides for the internal and administrative (or external) review of certain conduct of agencies. It provides, relevantly:

2. Application of Part

3. This Part applies to the following conduct –

(a)   the contravention by a public sector agency of an information protection principle that applies to the agency,

(b)   the contravention by a public sector agency of a privacy code of practice that applies to the agency,

(c)   the disclosure by a public sector agency of personal information kept in a public register.

1. A reference in this Part to conduct includes a reference to alleged conduct.

2. Internal review by public sector agencies

3. A person (the applicant) who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct …

…   

1. The review is to be undertaken by the public sector agency concerned.

2. An application for review must –

(a)   be in writing,

(b)   be addressed to the public sector agency concerned, and

(c)   specify an address in Australia to which a notice under subsection (8) may be sent, and

(d)    be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application, and

(e)   comply with such other requirements as may be prescribed by the regulations.

1. Except as provided by section 54(3), the application must be dealt with by an individual within the public sector agency who is directed by the agency to deal with the application. That individual must be, as far as is practicable, a person –

(a)   who was not substantially involved in any matter relating to the conduct the subject of the application, and

(b)   who is an employee or officer of the agency, and

(c)   who is otherwise suitably qualified to deal with the matters raised by the application.

1. In reviewing the conduct the subject of the application, the individual dealing with the application must consider any relevant material submitted by –

(a)   the applicant, and

(b)   the Privacy Commissioner.

1. The review must be completed as soon as is reasonably practicable in the circumstances. However, if the review is not completed within 60 days from the day on which the application was received, the applicant is entitled to make an application under section 55 to the Tribunal for an administrative review of the conduct concerned.

2. Following completion of the review, the public sector agency whose conduct was the subject of the application may do any one or more of the following –

(a)   take no further action on the matter,

(b)   make a formal apology to the applicant,

(c)   take such remedial action as it thinks appropriate (eg the payment of monetary compensation to the applicant),

(d)   provide undertakings that the conduct will not occur again,

(e)   implement administrative measures to ensure that the conduct will not occur again.

…

1. As soon as practicable (or in any event within 14 days) after the completion of the review, the public sector agency must notify the applicant in writing of –

(a)   the findings of the review (and the reasons for those findings), and

(b)   the action proposed to be taken by the agency (and the reasons for taking that action), and

(c)   the right of the person to have those findings, and the agency’s proposed action, administratively reviewed by the Tribunal.

…

1. Administrative review of conduct by Tribunal

2. 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 Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1999 of the conduct that was the subject of the application under s 53

1. 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 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 of a privacy code of practice,

(d)   an order requiring person 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.

1. Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997.

…

Contentions of the parties

20. The applicant contends that her emails of 7 and 13 February 2023 and 4 March 2023 are valid requests for internal review in that they comply with the requirements of s 53(3) of the PPIP Act. That is, they are: ‘in writing’, ‘addressed to the public sector agency concerned’, ‘specify an address in Australia to which a notice may be sent’ and were ‘lodged at an office of the public sector agency within six months from the time she first became aware of the conduct the subject of the application’. She contends that the agency has failed to undertake an internal review of its impugned conduct as soon as is reasonably practicable in accordance with s 53(6) and that she therefore is able to apply to NCAT for administrative review of that conduct. On this basis she submits that the agency’s summary dismissal application ought to be dismissed and her administrative review application set down for hearing.

21. The agency contends that NCAT does not have jurisdiction to deal with the applicant’s substantive application, and on this basis, that the application is misconceived and ought to be dismissed pursuant to s 55(1)(b) of the NCAT Act. There are two bases upon which the agency submits that the NCAT does not have jurisdiction to deal with the application.

22. First it is submitted that the conference of jurisdiction to the Tribunal under s 55 of the PPIP Act to hear an administrative review application is conditional on an applicant having first made an application for internal review under s 53 of the PPIP Act. The agency contends that the applicant has not made a competent application for internal review and no internal review has been conducted by the agency in fact.

23. Second, the agency contends that the impugned conduct the applicant seeks review of is not conduct to which Part 5 of the PPIP Act applies. As I understand this submission, that is because a social housing applicant’s allocation zone is not personal information. Rather, it forms part of an eligibility determination made in accordance with government policy. A current medical assessment (being an assessment not older than 3 months) is necessary to support any application for a change to the eligibility determination.

24. I note that the agency has provided at Annexures E and F of its submissions filed on 8 May 2023 two policy documents being “Housing Pathways Evidence Requirements Information Sheet” and “Managing the NSW Housing Register Policy” the terms of which it relies upon to support its second submission. I have not set out the contents of these policy documents for the reason I explain following.

Consideration

25. It is well established law that an application ought not to be decided in a summary way other than in the clearest of cases and with exceptional caution. In considering an application for summary dismissal, the substantive applicant’s case must be taken at its highest. It falls to the summary dismissal applicant to establish that the substantive applicant’s case is so obviously untenable that it cannot succeed, is manifestly groundless, or discloses a case which the court is satisfied cannot proceed: General Steel Industry v Commissioner for Railways (1964) 112 CLR 125; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256.

26. It must be accepted that an absence of jurisdiction (power) to deal with an application is a clear case where summary dismissal of an application is appropriate. It would be a jurisdictional error for the Tribunal to purport to exercise power that it does not have in dealing with such an application: Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [23] to [31], [40], [42] to [44] and [62] to [80].

27. NCAT’s jurisdiction is statutory only, not at large. It only has power to exercise administrative review jurisdiction in relation to an administratively reviewable decision designated by enabling legislation: s 30(1) and (3) of the NCAT Act and s 9 of the ADR Act. Despite the breadth of the words found in section 39 of the NCAT Act “an application” can only be before the Tribunal if the enabling legislation provides for a matter to be brought to the attention of the Tribunal for decision. That is the case even though a person may have correctly completed the procedure for submitting an Application for administrative review pursuant to rule 24 of the NCAT Rules, including by paying an application fee (I understand the application fee was waived in this case). If the enabling legislation does not permit the matter to be brought to the attention of the Tribunal, the application will be of no effect: Y v Director General, Department of Education and Training [2001] NSWADT 149 at [74].

28. The PPIP Act is enabling legislation. Section 55(2) of that Act provides that NCAT has the power to conduct an administrative review of the “conduct” of the public sector agency that was the subject of an internal review conducted under s 53 of that Act. This involves a “two-step process”: BQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 64 (BQ) at [17]:

1. In short, the Privacy Act provides for a two-step review process. A person aggrieved by certain conduct, as defined by a 52(1), may apply to the relevant agency for internal review of that conduct within six months of becoming aware of the conduct in question. If the person is not satisfied with “the findings of the review or the action taken by the agency in relation to the application”, the applicant may apply to the Tribunal for a review of the conduct the subject of the application for internal review.

   29. There is no issue in this case that the agency has not conducted an internal review of the conduct impugned by applicant.

   30. However, there is a single exception to s 52(2) which is found in s 53(6) of the PPIP Act. If the internal review is not completed within 60 days from the day on which the application was received, the applicant is entitled to make an application under s 55 for administrative review of the conduct concerned.

   31. It is this issue that is ultimately fatal to the applicant’s substantive application. Whether time is taken to run from 7 or 13 February 2023 or 4 March 2023 (being the dates she contends she made internal review applications to the agency), 60 days had not lapsed when her application was made on 14 March 2023. If time runs from the earliest of these dates only 35 days had lapsed on the date the administrative review application was made. The applicant had no entitlement under the PPIP Act to bring the matter to the attention of NCAT for a decision on that date. The Tribunal therefore has no jurisdiction to deal with the application. It is ‘misconceived’ within the meaning of s 55(1)(b) of the NCAT Act because it is based upon a fundamental misunderstanding of legal principle: Alchin v Rail Corporation NSW [2012] NSWADT 142 at [25] to [26].

   32. Although it is not strictly necessary to do so, I now turn to the agency’s contentions as to the absence of jurisdiction.

   33. The contention that the applicant failed to make a competent application for internal review bears some critical examination.

   34. To constitute an application for internal review the document relied upon by an applicant as constituting that request must meet the requirements of s 53(3) of the PPIP Act. I am satisfied that the applicant’s email communications to the agency dated 7 and 13 February 2023 and 4 March 2023 satisfy those formal requirements.

   35. The document or documents relied upon by an applicant must also, upon their face, reasonably convey to a public sector agency that an application for an internal review is sought: PC v University of New South Wales (GD) [2005] NSWADTAP 72 at [78]. There needs to be material that can be understood by the agency, fairly read, as connecting the action or circumstances of concern to an information protection principle, whether the principle itself is actually specified by the application: CYL v YZA [2017] NSWCATAP 105 at [58]. The surrounding context and contents of an applicant’s communication must reasonably convey to the respondent agency that a statutory right is being invoked: Y v Director General, Department of Education & Training [2001] NSWADT 149 at [1]

   36. The applicant’s communications to the agency dated 7 and 13 February 2023 and 4 March 2023 do not contain any reference to the PPIP Act or any express reference to an IPP. They do, however, clearly request an internal review of the conduct complained about in those communications. That appears in capitalised type. Additionally, the words from these communications I have excerpted at paragraphs 8 j and m, on an objective and reasonable assessment, convey to the agency that the internal review being sought relates to conduct of the agency in not automatically amending at her request what the applicant was contending was her personal information held by the agency. It requires no stretch of imagination to ascertain that this engaged the agency’s obligations with respect to IPP 8 (s 15 of the PPIP Act) (amendment of personal information).

   37. The agency treated the applicant’s 7 February 2023 email as a “complaint”, apparently because it was sent to the agency’s “feedback” email address. Later emails were sent to various operations addresses which resulted in agency staff making operational responses. The recipients of these emails did not recognise the applicant’s requests for internal review to have meaning outside a complaint and operational context. However, that is an agency shortcoming. Section 53(3) does not require an applicant for internal review to address a request to ‘the right section’ of an agency. The legislative scheme presupposes that an agency’s staff will have sufficient understanding of the agency’s privacy obligations to be able to recognise when those obligations are engaged.

   38. The applicant’s communications of 7 and 13 February 2023 and 4 March 2023 are prolix and discursive. They might also be fairly stated to be abusive of agency staff. In this respect there can be no doubt that agency staff were confronted with significant challenges in understanding and responding to these communications.

   39. Notwithstanding this, the passages of these communications I have excerpted stand out as clear and unambiguous in my view. They convey to the agency that the applicant wants an internal review of its decision not to automatically amend the address details for her allocation zone in accordance with her request. There can be no doubt that the 4 March 2023 email read together with the emails of 7 and 13 February 2023 make it clear that the applicant is attempting to assert a statutory right because she refers to the institution of proceedings in NCAT.

   40. Address information given in association with a person’s name is, at the least, capable of being “personal information” within the meaning of s 4 of the PPIP Act. There can be no issue that the agency had collected the applicant’s address information and held it for the purposes of her social housing application. Whether that information is personal information in the specific context of this dispute is an issue for internal (and external) review. It is not an issue that entitled the agency not to conduct an internal review. The policy documents the agency has filed and which I have referred to at paragraph 25 above will be relevant to that consideration.

   41. It follows from this reasoning that I do not accept on a prima facie basis the agency’s second proposition that the applicant’s address details held by the agency in connection with her allocation zone is not personal information that attracts the operation of the PPIP Act. I accept that it might ultimately be the decision of the Tribunal on external review that in the specific context of this case this information is an eligibility determination for social housing and not personal information that the agency is obliged to amend in accordance with IPP 8. However, there is complexity associated with this issue which means that it should not be determined in a summary way. The issue deserves careful consideration on its merits.

Orders

42. For the foregoing reasons:

1. Application for administrative review no. 2023/00103385 is dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW).

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 18 July 2023