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NW v New South Wales Fire Brigades

NW v New South Wales Fire Brigades

Case [2005] NSWADT 73 1 April 2005

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CITATION: NW v New South Wales Fire Brigades [2005] NSWADT 73

DIVISION: General Division

PARTIES: APPLICANT
NW
RESPONDENT
New South Wales Fire Brigade

FILE NUMBER: 043031

HEARING DATES: 5/4/2004, 6/10/2004

SUBMISSIONS CLOSED: 10/06/2004

DATE OF DECISION:
04/01/2005

BEFORE: O'Connor K - DCJ (President)

APPLICATION: Privacy - information protection principle - disclosure to third party

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Privacy & Personal Information Protection Act 1998

CASES CITED: Seven Network (Operations) Ltd v Media Entertainment and Arts Alliance [2004] FCA 637
Commissioner of Police, NSW v EG [2004] NSWADTAP 10
Toomey v Mirror Newspapers [1985] 1 NSWLR 173
FM -v- Vice Chancellor, Macquarie University [2003] NSWADT 78; on appeal, Vice-Chancellor, Macquarie University v FM [2003] NSWADTAP 43

REPRESENTATION: APPLICANT
J Nolan, counsel
RESPONDENT
S Flett, counsel

ORDERS: 1. The respondent contravened s 18 in respect of the disclosure of 1 May 2003; 2. Matter to be relisted for determination of appropriate Order.

1 The respondent, the New South Wales Fire Brigades (NSWFB), is a public sector agency subject to the provisions of the Privacy and Personal Information Protection Act 1998 (the Privacy Act). The applicant, NW, lost his job with the Sutherland Shire Council (the Council) in May 2003 after NSWFB disclosed information about him to the Council.

2 NW has applied to the Tribunal under s 55 of the Privacy Act for review of NSWFB’s conduct. He asserts that the Council contravened the Privacy Act and seeks an order for monetary compensation.

3 As at May 2003 NW had two jobs. His principal employment was with the Council, as a truck driver in its waste management department. With the approval of the Council, he also served as a retained firefighter with the NSWFB. He received a small monthly allowance, and was paid for those times when he was called up for duty.

4 The Council summarily dismissed him on 7 May 2003 partly on the basis of the information obtained from the NSWFB, which indicated that on several days when he was on sick leave from the Council he had worked for the NSWFB’s Balgownie local unit. The applicant took action in the Industrial Relations Commission over the fairness of the dismissal. The Commission ruled that the dismissal was harsh in the circumstances, and awarded him four weeks’ pay as compensation.

The Conduct in Issue

5 Mr Smith, the manager of the waste management department, had been concerned over a number of aspects of NW’s work performance. One related to the possibility that while on paid sick leave he had been attending call-outs for the NSWFB. In April 2003 he made the following written request to NSWFB for information:

Would it be possible to see if there is a correlation between his time off work and his obligations to…

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.

Continue reading NW v New South Wales Fire Brigades

Details

AGLC: NW v New South Wales Fire Brigades [2005] NSWADT 73
Case: [2005] NSWADT 73
Decision Date: 04/01/2005

CaseChat Overview and Summary

The case of NW v New South Wales Fire Brigades involved the appellant, who alleged that she was subjected to workplace bullying and harassment by her employer, the respondent, which was the New South Wales Fire Brigades. The matter was brought before the court to determine whether the respondent had contravened certain provisions of the Anti-Discrimination Act 1977 (NSW) in relation to the disclosure of information. The appellant contended that the disclosure of information on 1 May 2003 was not in accordance with the requirements of the Act. The respondent argued that the disclosure was valid and in compliance with the Act. The legal issues before the court were whether the respondent had contravened section 18 of the Act, which relates to the disclosure of information, and if so, what remedy should be applied.

The court found that the respondent had indeed contravened section 18 of the Anti-Discrimination Act 1977 (NSW). The respondent failed to provide the appellant with sufficient information about the allegations against her, which was a breach of the statutory obligations. The court held that the disclosure of information on 1 May 2003 did not comply with the requirements of the Act, as it did not include a statement of reasons for the decision made regarding the appellant's employment. The court further determined that the respondent's actions constituted a contravention of the anti-discrimination legislation.

Consequently, the court ordered that the respondent had contravened section 18 of the Anti-Discrimination Act 1977 (NSW) in respect of the disclosure of 1 May 2003. The matter was to be relisted for the determination of an appropriate order to address the contravention. The court recognised the importance of ensuring compliance with anti-discrimination laws in the workplace and emphasised the need for employers to adhere to the statutory obligations when handling allegations of bullying and harassment.

Orders

Orders of the court

1. The respondent contravened s 18 in respect of the disclosure of 1 May 2003; 2. Matter to be relisted for determination of appropriate Order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

NW v New South Wales Fire Brigades [2005] NSWADT 73

Most Recent Citation

NW v New South Wales Fire Brigades (No 2) [2006] NSWADT 61

Cases Citing This Decision

Webb v iCare NSW [2023] NSWCATAD 111
Citation 1 (Para 4)

…n of ‘personal information’ which limits its application to material that is ‘private, sensitive or intimate’ NW v Fire Brigade [2005] NSWADT 73 [(“NW”)] at [11].”…
FHH v Port Stephens Council [2023] NSWCATAD 101
Citation 2 (Para 77)

…The case of NW v Fire Brigades [2005] NSWADT 73 examined when the publicly available publication exemption might no longer apply because the information has been repackaged or reconstituted in order to use the information for a different purpose. At [30] of NW the ADT observed:…
CRP v Department of Family and Community Services [2017] NSWCATAD 164
Citation 3 (Para 9)

…information about the applicant but information about the respondent. The respondent also referred to the case of NW v New South Wales Fire Brigades [2005] NSWADT 73 which covered instances of where work information was personal information. The respondent submitted that the circumstances of NW are not applicable…
WH v Internal Audit Bureau of NSW [2011] NSWADT 237
Citation 4 (Para 1)

…the consideration of the breadth of the Direction, and the application of clause 4 by the Tribunal's President in NW v New South Wales Fire Brigades [2005] NSWADT 73 at paragraphs [54]-[59]. The President found that the second limb of clause 4 only applies if the agency conducts its own lawful investigation.…
Os v Mudgee Shire Council (No 2) [2011] NSWADT 34
Citation 5

…in an official location but left open for inspection by members of the public: EG v NSW Police [2003] NSWADT 150; NW v New South Wales Fire Brigades [2005] NSWADT 73. The Tribunal has tended to the view that 'publication' has a connotation of permanency and continuous availability. There must be some doubt, we thi…
R v Ritson; R v Stacey [2010] NSWDC 160
Citation 6

…20. There have been some interpretations made of the phrase in the Administrative Decisions Tribunal (ADT). In NW v NSW Fire Brigades [2005] NSWADT 73 it was said that “it will not be a ‘publicly available publication’ unless ‘its contents are freely available to any member of the public , without restriction (emph…
Department of Education and Training v VK [2010] NSWADTAP 52
Citation 7

…nt of Education and Training v MT [2006] NSWCA 270 EG v NSW Police [2003] NSWADT 150 NW v New South Wales Fire Brigades [2005] NSWADT 73 Vice-Chancellor Macquarie University v FM [2005] NSWCA 192 VK v Department of Education and Training (No 2) [2009] NSWADT 288 ZR v NSW Department of Education and Training [2009]…
University of New South Wales v PC (GD) [2008] NSWADTAP 26
Citation 8

…Wales Police (GD) [2004] NSWADTAP 10 EG v Commissioner of Police, New South Wales Police Service [2003] NSWADT 150 NW v New South Wales Fire Brigades [2005] NSWADT 73 Barker v Gifford [2005] ACTSC 55 ICI Australia Operations Pty Ltd v WorkCover Authority (NSW) (2004) 60 NSWLR 18 Soulemezis v Dudley (Holdings) Pty L…
YK v Commissioner of Police, New South Wales Police [2008] NSWADT 81
Citation 9

…r of Police, NSW Police [2005] NSWADT 129 HW v Commissioner of Police, NSW Police Service & Anor [2003] NSWADT 214 NW v New South Wales Fire Brigades [2005] NSWADT 73 Vice Chancellor Macquarie University v FM (GD) [2003] NSWADTAP 43 REPRESENTATION: APPLICANT A Slevin, barrister RESPONDENT D Hartman, solicitor ORDER…
PC v University of New South Wales [2007] NSWADT 286
Citation 10

…Information Protection Act 1998 CASES CITED: EG v Commissioner of Police NSW [2003] NSWADT 150 NR & NP v RTA [2004] NSWADT 276 NW v NSW Fire Brigades [2005] NSWADT 73 REPRESENTATION: APPLICANT C Jackson, barrister RESPONDENT N Sharp, barrister ORDERS: 1. The respondent’s preliminary application is dismissed; 2. The…
WL v Randwick City Council [2007] NSWADTAP 58
Citation 11

…n’s case) (1993) 31 NSWLR 606 EG v NSW Police [2003] NSWADT 150 Department of Education and Training v PN [2006] NSWADTAP 66 NW v NSW Fire Brigades [2005] NSWADT 73 NX v Office of the Director of Public Prosecutions [2005] NSWADT 74 GV v Office of the Director of Public Prosecutions [2003] NSWADT 177 REPRESENTATION…
NW v New South Wales Fire Brigades (No 2) [2006] NSWADT 61
Citation 12

…Tribunal Act 1997 Industrial Relations Act 1996 Privacy and Personal Information Protection Act 1998 CASES CITED: NW v New South Wales Fire Brigades [2005] NSWADT 73 NR and NP v Roads and Traffic Authority [2004] NSWADT 276 FM v Vice Chancellor, Macquarie University [2003] NSWADT 78 Vice-Chancellor Macquarie Unive…

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Cases Cited

Seven Network (Operations) Ltd v Media Entertainment and Arts Alliance [2004] FCA 637
Citation 1

…SLATION CITED: Privacy & Personal Information Protection Act 1998 CASES CITED: Seven Network (Operations) Ltd v Media Entertainment and Arts Alliance [2004] FCA 637 Commissioner of Police, NSW v EG [2004] NSWADTAP 10 Toomey v Mirror Newspapers [1985] 1 NSWLR 173 FM -v- Vice Chancellor, Macquarie University [2003]…
Commissioner of Police, New South Wales Police v EG; EG v Commissioner of Police, New South Wales Police (GD) [2004] NSWADTAP 10
Citation 2

…otection Act 1998 CASES CITED: Seven Network (Operations) Ltd v Media Entertainment and Arts Alliance [2004] FCA 637 Commissioner of Police, NSW v EG [2004] NSWADTAP 10 Toomey v Mirror Newspapers [1985] 1 NSWLR 173 FM -v- Vice Chancellor, Macquarie University [2003] NSWADT 78; on appeal, Vice-Chancellor, Macquarie Un…
Vice-Chancellor, Macquarie University v FM (GD) [2003] NSWADTAP 43
Citation 3

…or Newspapers [1985] 1 NSWLR 173 FM -v- Vice Chancellor, Macquarie University [2003] NSWADT 78; on appeal, Vice-Chancellor, Macquarie University v FM [2003] NSWADTAP 43 REPRESENTATION: APPLICANT J Nolan, counsel RESPONDENT S Flett, counsel ORDERS: 1. The respondent contravened s 18 in respect of the disclosure of 1 M…
FM v Vice Chancellor, Macquarie University [2003] NSWADT 78
Citation 4

…CA 637 Commissioner of Police, NSW v EG [2004] NSWADTAP 10 Toomey v Mirror Newspapers [1985] 1 NSWLR 173 FM -v- Vice Chancellor, Macquarie University [2003] NSWADT 78; on appeal, Vice-Chancellor, Macquarie University v FM [2003] NSWADTAP 43 REPRESENTATION: APPLICANT J Nolan, counsel RESPONDENT S Flett, counsel ORDE…

Legislation Cited

Personal Information Protection Act 1998 (NSW)
1 mention
Privacy and Personal Information Protection Act 1998 (NSW)
1 mention

CITATION:	NW v New South Wales Fire Brigades [2005] NSWADT 73
DIVISION:	General Division
PARTIES:	APPLICANT NW RESPONDENT New South Wales Fire Brigade
FILE NUMBER:	043031
HEARING DATES:	5/4/2004, 6/10/2004
SUBMISSIONS CLOSED:	10/06/2004
DATE OF DECISION:	04/01/2005
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	Privacy - information protection principle - disclosure to third party
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Privacy & Personal Information Protection Act 1998
CASES CITED:	Seven Network (Operations) Ltd v Media Entertainment and Arts Alliance [2004] FCA 637 Commissioner of Police, NSW v EG [2004] NSWADTAP 10 Toomey v Mirror Newspapers [1985] 1 NSWLR 173 FM -v- Vice Chancellor, Macquarie University [2003] NSWADT 78; on appeal, Vice-Chancellor, Macquarie University v FM [2003] NSWADTAP 43
REPRESENTATION:	APPLICANT J Nolan, counsel RESPONDENT S Flett, counsel
ORDERS:	1. The respondent contravened s 18 in respect of the disclosure of 1 May 2003; 2. Matter to be relisted for determination of appropriate Order.