KP v Narrandera Shire Council

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Administrative Decisions Tribunal


New South Wales

Medium Neutral Citation: KP v Narrandera Shire Council (GD) [2011] NSWADTAP 15
Hearing dates:9 December 2010
Decision date: 01 April 2011
Before: Magistrate N Hennessy, Deputy President
S Montgomery, Judicial Member
E Hayes, Non-Judicial Member
Decision:

1. The Tribunal's decisions to take no action is set aside.

2. The matter is remitted to a differently constituted Tribunal to be heard and decided again with the hearing of further evidence.

Catchwords: APPEAL - Privacy and Personal Information Protection Act - scope of Tribunal's jurisdiction - whether Tribunal bound to make a finding as to whether there has been a contravention of the Information Protection Principles before deciding to take no further action
Legislation Cited: Administrative Decisions Tribunal Act 1997
Privacy and Personal Information Protection Act 1998
Government Information (Public Access) Act 2009
Powers of Attorney Act 2003
Cases Cited: KO and KP v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 56
AW v Vice Chancellor, University of Newcastle [2008] NSWADT 86
NW v New South Wales Fire Brigades (No 2) [2006] NSWADT 61
McDonald v Director-General of Social Security (1984) 1 FCR 354
NS v Commissioner, Department of Corrective Services [2004] NSWADT 263
Texts Cited: Williams CR, Burdens and Standards in Civil Litigation (2003) Sydney Law Review 9
Category:Principal judgment
Parties: KP (Appellant)
Narrandera Shire Council (Respondent)
Representation: Counsel
MA Robinson (Respondent)
KP (Appellant - in person)
Henningham Law (Respondent)
File Number(s):109022
 Decision under appeal 
Before:
General Division
File Number(s):
093011

reasons for decision

Background

  1. KP has appealed against a decision of the Tribunal under the Privacy and Personal Information Protection Act 1998 (PPIP Act) that no action be taken in relation to his application . KP is entitled to appeal on a question of law but must obtain the Appeal Panel's leave before appealing against the merits of the Tribunal's decisions: ADT Act, s 113.

  1. KP is a resident of the local government area under the control of Narrandera Shire Council. In 2006 he complained to the NSW Ombudsman about the way certain Council employees had treated him. These proceedings concern a letter written by the then General Manager of the Council to the NSW Ombudsman's Office on 5 December 2006 responding to those complaints. The letter stated that KP had been prohibited from accessing Council's offices. The reasons for that decision were said to be the 'vexatious complaints' made by KP and, more recently, his 'unstable' behaviour. That behaviour was alleged to have included:

(a)   verbal outbursts with staff;

(b)   photographing a Councillor's residence;

(c)   causing problems at the airport including unauthorised access to the airside section of the airport and attempting to seek information on aviation fuel; and

(d)   attempting self harm.

  1. On 13 December 2008, KP applied for an internal review of Council's conduct pursuant to the PPIP Act . When asked to identify the specific conduct he was complaining about, KP wrote:

The collection of personal information for unlawful means (PPIP Act 1998 -…
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Details
Case
[2011] NSWADTAP 15
Decision Date

CaseChat Overview and Summary

The case of KP v Narrandera Shire Council involved a dispute under the Privacy and Personal Information Protection Act. The appellant, KP, sought a review of the Tribunal's decision not to take any further action on her complaint that the respondent, Narrandera Shire Council, had contravened the Information Protection Principles. The matter was heard in the Civil and Administrative Tribunal of New South Wales, and subsequently appealed to the Supreme Court.

The primary legal issue before the court was whether the Tribunal was required to make a finding as to whether there had been a contravention of the Information Protection Principles before deciding to take no further action. The appellant argued that the Tribunal was obliged to make such a finding, while the respondent contended that the Tribunal had the discretion to take no further action if it considered that it was not in the public interest to do so. The court needed to determine the scope of the Tribunal's jurisdiction and whether the Tribunal had exercised its discretion correctly.

The court held that the Tribunal was indeed required to make a finding as to whether there had been a contravention of the Information Protection Principles before deciding to take no further action. The court found that the Tribunal had not made such a finding, and therefore had not exercised its discretion correctly. The court set aside the Tribunal's decisions to take no action and remitted the matter to a differently constituted Tribunal to be heard and decided again with the hearing of further evidence.

The Supreme Court's decision clarified the scope of the Tribunal's jurisdiction under the Privacy and Personal Information Protection Act and emphasised the importance of making findings of fact before exercising discretion. The final orders of the court were to set aside the Tribunal's decisions to take no action and to remit the matter to a differently constituted Tribunal to be heard and decided again with the hearing of further evidence.

Orders

Orders of the court

1. The Tribunal's decisions to take no action is set aside.

2. The matter is remitted to a differently constituted Tribunal to be heard and decided again with the hearing of further evidence.

Background

Background to the litigation

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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

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