NZ v NSW Department of Housing

[2007] NSWADT 62

CITATION:	NZ v NSW Department of Housing [2007] NSWADT 62
DIVISION:	General Division
PARTIES:	APPLICANT NZ RESPONDENT NSW Department of Housing
FILE NUMBER:	063415
HEARING DATES:	15 March 2007
SUBMISSIONS CLOSED:	15 March 2007
DATE OF DECISION:	21 March 2007
BEFORE:	Handley R - Acting Deputy President
CATCHWORDS:	Jurisdiction
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Privacy and Personal Information Protection Act 1998
REPRESENTATION:	APPLICANT In person RESPONDENT J Eccleston, solicitor
ORDERS:	(1) The Tribunal has jurisdiction to hear NZ’s application filed on 23 November 2006. ; (2) The matter is remitted to the NSW Department of Housing for the Department to make a decision in response to NZ’s complaint of a breach of her privacy.; (3) The matter is listed for directions on 8 June 2007 at 2pm

1 NZ claims the NSW Department of Housing (‘the Department’) contravened the Privacy and Personal Information Protection Act1998 (‘the PPIP Act’) by keeping false letters and statements about NZ and ignoring her request to remove them from its file. The Department contends that it never received any application from NZ under the PPIP Act in relation to these documents, or any request for an internal review of a decision made or purported to be made in relation to this application. Moreover, the Department contends that it does not hold copies of the documents referred to by NZ. The Department submits that, no internal review decision having been made, the Tribunal has no jurisdiction in relation to this matter pursuant to s 55(1) of the PPIP Act.

Background and Submissions

2 On 23 November 2006, the Tribunal received an application from NZ for the review of a decision made under the PPIP Act. In the application, NZ stated:

“Dept keeps taking in fraud & forgery false letters and statements. They receive my letters & refuse to do the internal review & remove all false letters and 2 false statements 2/2/06 & 20/4/06 ... No replies from Department they ignored me.”

3 The application is handwritten and very difficult to understand. In an accompanying letter dated 17 November 2006, NZ said these false statements contain “forged AVO documents ... [including] the Privacy Breach letters ex 14 (Estella Yuen letter 3 May 02) ex 11 (letter 26/1/03) & ex 25 ...”

4 Attached to the application are a large number of documents, comprising photocopies of the whole or part of documents in relation to other proceedings, with highlighting and additional comments handwritten on some of the documents by NZ. This matter is apparently related to a dispute between NZ and a neighbour with whom she has been involved in Apprehended Violence Order (‘AVO’) proceedings in Waverley Local Court.

5 NZ suffers from a psychological condition (severe agoraphobia and social phobia) that prevents her from leaving her home. She has provided a number of reports from her general practitioner and treating psychologist attesting to this. Even when discussing her application with the Tribunal on the phone, NZ quickly becomes distressed.

6 In response to NZ’s application, Ms Eccleston, the solicitor representing the Department, filed an affidavit dated 24 January 2007. Ms Eccleston commented that “[t]he precise nature of this Application is not clear or coherent”, although she noted that it referred to statements made by Ms T Gardiner, dated 2 February 2006, referring to documents dated 26 April 2006, filed as evidence in relation to an application in the Equal Opportunity Division of the Tribunal. Ms Eccleston submitted that these “statements and any associated documents ... are therefore not the proper subject of any further or separate purported Application as alleged or at all”. She stated that to the best of her knowledge, “the Department does not hold a record of any specific Breach of Privacy Complaint in proper form referring to the matters raised in this instance”, nor to any specific request for an internal review. Ms Eccleston submitted that NZ has not demonstrated that she has standing for this Application and, accordingly, jurisdiction for the Tribunal has not been established. The purported Application should therefore be dismissed.

7 At a Planning Meeting held by the Tribunal with the parties on 24 January 2007, the Tribunal made directions (1) requiring NZ to provide (a) a copy of her letter to the Department complaining of a breach of her privacy and (b) her letter seeking an internal review, by 7 February 2007, (2) requiring NZ to provide written submissions on the Department’s application to dismiss her Application by 16 February 2007, and (3) requiring Ms Eccleston to provide the Department’s submissions on its application to dismiss by 2 March 2007.

8 On 31 January 2007, NZ sent a handwritten fax to the Tribunal with various attached documents, including a fax to the “Minister for Housing” dated 13 July 2006, alleging a breach of her and her son Robert’s privacy by Mr Chouman and the Department, and seeking “privacy breach fraud notes, letters that Mr Chouman has taken from Ms Gardiner”, and asking that the following be sent to her: “all false letters, notes, Ms Gardiner gave Mr Chouman, as I have not seen it or my family”. Also included in the faxed documents was a letter from NZ to “Legal Services, Department of Housing”, dated 15 August 2006, requesting an internal review from the Department in relation to her complaint dated 13 July 2006. The handwritten fax dated 31 January 2007 is difficult both to read and understand, but NZ appears to be asking for an extension of time for the filing of the originals of these documents.

9 On 2 March 2007, the Department filed an affidavit by Ms Eccleston. Ms Eccleston stated that following the Planning Meeting on 24 January 2007, NZ faxed the Department approximately 350 pages of documents. She said the copious additional documents may amount to the subject of further complaints and/or Applications. On 1 February 2007, NZ faxed a further 25 pages including NZ’s letters dated 13 July 2006 and 15 August 2006. Ms Eccleston stated:

“9. I caused lengthy searches of numerous files and records held by the department of Housing which store correspondence from the Applicant regarding her tenancy with the department, Ministerials and correspondence regarding her legal matters. Despite many hours of searches, there are no records regarding receipt of or copies of the letters referred to in item 8 above [the letters dated 13 July 2006 and 15 August 2006].

10. To the best of my knowledge and relevant officers of the Department of Housing, the Department does not hold records of receipt of the specified purported letter of complaint dated 13 July 2006 and purported request for an internal review dated 15 August, 2006 now supplied by the Applicant.”

10 Ms Eccleston submitted that NZ has not demonstrated that she has standing for her application for review by the Tribunal, and the purported application should therefore be dismissed. Ms Eccleston noted that the statements by Ms Gardiner dated 2 February 2006 and 20 April 2006 with attached documents, referred to by NZ in her application, were served on NZ as evidence in proceedings before the Tribunal. As such, they are not the proper subject of any further or separate application and to the extent that any issues raised in the current application relate to those other proceedings, such matters are exempt from the provisions of the PPIP Act pursuant to s 25 of that Act. [Section 25 provides that a public sector agency is not required to comply with various restrictions imposed by the Act if non-compliance is authorised or otherwise permitted by law.]

11 Ms Eccleston also noted that the letter from Estella Yuen dated 3 May 2002 is not the proper subject of any privacy complaint and if it was, any such complaint is out of time. [I note the letter from Estella Yuen, Client Services Officer for the Department, to NZ dated 3 May 2002, requests co-operation from residents in not parking in a disability parking spot. The letter makes no specific allegation that particular tenants have parked in this parking spot.] Similarly, Ms Eccleston noted that as far as is discernable from the documents supplied, the letter dated 13 July 2006 fails to indicate any basis for a breach of privacy complaint being made in respect of the activity of an officer of the Department, Mr Chouman. [I note the letter dated 13 July 2006 appears to suggest that Mr Chouman received allegations concerning NZ’s conduct, with supporting documentation, from Ms Gardiner. It is not apparent from the documents supplied by NZ how Mr Chouman could be said to have breached NZ’s rights under the PPIP Act.]

12 Ms Eccleston submitted that NZ’s documents do not appear to relate to privacy or a privacy complaint as understood by the PPIP Act, nor do they appear to conform with the requirements of ss 52, 53 and 55 of the Act.

13 On 8 March 2007, the Tribunal received a handwritten letter from NZ dated 5 March 2007, with typed submissions and a bundle of attached documents. The letter refers to a telephone conversation with Tribunal Registry staff “a week or so ago” in which NZ says she asked for an extension of time. There is no record of this on the file and no written confirmation of this request was received from NZ, which the Tribunal would ordinarily ask for in such circumstances. It appears that the Registry staff returned the documents received on 8 March 2007 to NZ for her to copy these and provide a copy to the Department. On 15 March 2007, NZ returned the letter and documents to the Tribunal.

14 Ms Eccleston objected to NZ’s submissions first filed on 8 March 2007 being received, because they were filed out of time and because the Department has not had an opportunity to consider and respond to these submissions. I have, nevertheless, decided to proceed with making a decision on the preliminary issue raised by the Department of whether the Tribunal has jurisdiction, exercising my discretion to refer to all relevant material but bearing in mind that the Department has not had an opportunity to respond to NZ’s submissions. NZ requested, and Ms Eccleston agreed, to my making a decision on this preliminary issue ‘on the papers’, without conducting an oral hearing.

15 In her submissions, NZ comments on the Department’s submissions. She emphasises on numerous occasions that her illness has disadvantaged her in these proceedings because she is unable to participate in the normal way, especially in hearings. NZ contends that the Department has received her application under the PPIP Act and her request for an internal review, but has ignored these letters.

16 Many of NZ’s submissions are very difficult to understand. She focuses on the false allegations made against her by the Department, on claims of harassment and threatening letters, on the Department’s failure to act to address the breaches of her privacy rights, and on the injustice she has suffered as a result. NZ submits that Ms Yuen’s “abusive letter containing these highly false allegations to my good name” could be the subject of her application claiming a breach of her privacy and any arguments that the application were out of time are irrelevant. NZ refers to the complaint she sent to Mr Chouman, but I am unable to understand the nature of her complaint against him, which does not appear to be explained by a review of the attached documents. With regard to Ms Gardiner’s statements, NZ appears to submit that the Department’s breach of her privacy arises from its reliance on these statements, which she says cause her “to suffer privacy breach and ... [make] me feel harassed, intimidated and threaten [sic] in my own home”.

Discussion

17 The preliminary issue for me to decide is whether the Tribunal has jurisdiction to hear NZ’s application pursuant to s 55 of the PPIP Act. Section 55(1) states:

“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.”

18 Thus, an internal review application is a pre-requisite to a review by the Tribunal under this section.

19 NZ has provided a copy of a letter to the Minister dated 13 July 2006 complaining of a breach of her privacy and requesting copies of documents given to Mr Chouman by Ms Gardiner. NZ has also provided a copy of a letter dated 15 August 2006 addressed to “Legal Services, Department of Housing” requesting an internal review in relation to the complaint set out in her letter dated 13 July 2006, and referring to conduct which she contends breaches her privacy. The Department has provided evidence, namely an affidavit from Ms Eccleston dated 2 March 2007, that there is no record of these letters being received.

20 I am satisfied from viewing faxed copies of NZ’s letters to the Department dated 13 July 2006 and 15 August 2006 that NZ did complain to the Department of a breach of her privacy and subsequently sought an internal review. The letters refer to conduct which NZ alleges amount to a breach of her privacy. On this basis, I am satisfied the Tribunal has jurisdiction under s 55 of the PPIP Act to hear NZ’s application for review.

21 However, I also accept Ms Eccleston’s evidence that the Department has no record of these letters being received. In my view, while I note Ms Eccleston has commented on the substance of NZ’s complaint in her affidavit, the appropriate course is for me to exercise the Tribunal’s power under s 65(1) of the Administrative Decisions Tribunal Act1997 to remit the matter to the Department to make a formal decision in response to NZ’s complaint. Once this decision has been made, NZ may, pursuant to s 65(4), either proceed with or withdraw her application to the Tribunal in this matter.

Decision

(1) The Tribunal has jurisdiction to hear NZ’s application filed on 23 November 2006.

(2) The matter is remitted to the Department of Housing for the Department to make a decision in response to NZ’s complaint of a breach of her privacy.

(3) The matter is listed for directions on 8 June 2007 at 2pm