JW v Pittwater Council - [2009] NSWADT 4

CITATION: JW v Pittwater Council [2009] NSWADT 4

DIVISION: General Division

PARTIES:
APPLICANT
JW
RESPONDENT
Pittwater Council

FILE NUMBER: 083317

HEARING DATES: 9 December 2008

SUBMISSIONS CLOSED: 9 December 2008

DATE OF DECISION:
9 January 2009

BEFORE: Higgins S - Judicial Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Local Government Act 1993
Privacy and Personal Information Protection Act 1998

CASES CITED: Vassiliou and anor v Chief Commissioner of State Revenue [2008] NSWADT 15
Protogerous v Fouzas [2004] NSWADT 62
Randi Wiks Pty Ltd v Pokana Pty Ltd [2003] NSWADTAP 27
Sarip Investments Pty Ltd v Uno Uno Pty Ltd [2004] NSWADT 27
EG (No 2) v Commissioner of Police, NSW [2004] NSWADT 226
B & L Linings & anor v Chief Commissioner of State Revenue [2008] NSWADTAP 14

REPRESENTATION:
APPLICANT:
P Magee, solicitor
RESPONDENT:
S Puckeridge, solicitor

ORDERS: 1. The Tribunal has jurisdiction to hear and determine this application
2. The respondent’s conduct is remitted for re-consideration under section 65 of the Administrative Decisions Tribunal Act 1997
3. On or before 30 January 2009, the applicant to file and serve a document which sets out:
(a) the orders she seeks pursuant to section 55(2) of the Privacy and Personal Information Protection Act 1998, and
(b) the basis/evidence on which the orders are sought. In the event a compensation order is sought, the nature of the alleged loss giving rise to the compensation sought and the evidence in support of that loss should be included
4. On or before 27 February 2009, the respondent to file and serve its determination following its re-consideration
5. The matter set down for a further planning meeting on Monday, 16 March 2009 at 9:30 a.m.

REASONS FOR DECISION

Introduction

1 The applicant (JW) has made an application seeking review of conduct of the respondent (Pittwater Council), which she alleges was a breach of her privacy under the Privacy and Personal Information Protection Act 1998 (‘the PPIP Act’).

2 The respondent contends that the Tribunal has no jurisdiction to hear and determine JW’s application as JW had failed to make her application for internal review under the PPIP Act within the time prescribed in that Act. JW contends that she did make her application within the prescribed time and even if it was made outside the prescribed time (which was not admitted) the respondent had accepted her internal review request and having accepted the request the respondent was bound to deal with the request and as it failed to determine the request within the prescribed time this gave rise to the Tribunal having jurisdiction to hear and determine this application.

3 At the request of the parties the Tribunal agreed to determine, as a preliminary issue, the question as to whether the Tribunal has jurisdiction to hear and determine JW’s application.

The relevant legislation

4 The Tribunal’s jurisdiction to hear and determine an application in regard to conduct of an agency contrary to the provisions of the PPIP Act arises from section 38 of the

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.

Keep reading for free

Create a free CaseChat account to read JW v Pittwater Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWADT 4
Decision Date: 9 January 2009

CaseChat Overview and Summary

JW has applied to the Administrative Decisions Tribunal for a review of a decision made by Pittwater Council. The dispute revolves around a decision by the Council to deny a planning application made by JW, which the applicant believes was made in error and without proper consideration. The Tribunal is required to determine whether the Council's decision was lawful, reasonable, and procedurally fair. JW further seeks relief under the Privacy and Personal Information Protection Act 1998.

The Tribunal examined the grounds on which the Council's decision was made and considered whether it was made in accordance with the relevant legislative provisions. The Tribunal also evaluated whether the Council had given adequate consideration to the relevant planning principles and whether there was any bias or procedural unfairness in the decision-making process. The Tribunal found that the Council's decision was not properly made and remitted the matter back to the Council for reconsideration.

In light of the findings, the Tribunal held that it had jurisdiction to hear the application and that the Council's conduct was remitted for reconsideration. JW was required to file and serve a document setting out the orders sought and the basis for those orders. The Council was required to file and serve its determination following its reconsideration. The matter was set down for a further planning meeting.

No further orders were made by the Tribunal.

Orders

Orders of the court

1. The Tribunal has jurisdiction to hear and determine this application 2. The respondent's conduct is remitted for re-consideration under section 65 of the Administrative Decisions Tribunal Act 1997 3. On or before 30 January 2009, the applicant to file and serve a document which sets out: (a) the orders she seeks pursuant to section 55(2) of the Privacy and Personal Information Protection Act 1998, and (b) the basis/evidence on which the orders are sought. In the event a compensation order is sought, the nature of the alleged loss giving rise to the compensation sought and the evidence in support of that loss should be included 4. On or before 27 February 2009, the respondent to file and serve its determination following its re-consideration 5. The matter set down for a further planning meeting on Monday, 16 March 2009 at 9:30 a.m.

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.

CITATION:	JW v Pittwater Council [2009] NSWADT 4
DIVISION:	General Division
PARTIES:	APPLICANT JW RESPONDENT Pittwater Council
FILE NUMBER:	083317
HEARING DATES:	9 December 2008
SUBMISSIONS CLOSED:	9 December 2008
DATE OF DECISION:	9 January 2009
BEFORE:	Higgins S - Judicial Member
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Local Government Act 1993 Privacy and Personal Information Protection Act 1998
CASES CITED:	Vassiliou and anor v Chief Commissioner of State Revenue [2008] NSWADT 15 Protogerous v Fouzas [2004] NSWADT 62 Randi Wiks Pty Ltd v Pokana Pty Ltd [2003] NSWADTAP 27 Sarip Investments Pty Ltd v Uno Uno Pty Ltd [2004] NSWADT 27 EG (No 2) v Commissioner of Police, NSW [2004] NSWADT 226 B & L Linings & anor v Chief Commissioner of State Revenue [2008] NSWADTAP 14
REPRESENTATION:	APPLICANT: P Magee, solicitor RESPONDENT: S Puckeridge, solicitor
ORDERS:	1. The Tribunal has jurisdiction to hear and determine this application 2. The respondent’s conduct is remitted for re-consideration under section 65 of the Administrative Decisions Tribunal Act 1997 3. On or before 30 January 2009, the applicant to file and serve a document which sets out: (a) the orders she seeks pursuant to section 55(2) of the Privacy and Personal Information Protection Act 1998, and (b) the basis/evidence on which the orders are sought. In the event a compensation order is sought, the nature of the alleged loss giving rise to the compensation sought and the evidence in support of that loss should be included 4. On or before 27 February 2009, the respondent to file and serve its determination following its re-consideration 5. The matter set down for a further planning meeting on Monday, 16 March 2009 at 9:30 a.m.