OS v Mudgee Shire Council - [2009] NSWADT 315

CITATION: OS v Mudgee Shire Council [2009] NSWADT 315

DIVISION: General Division

PARTIES:
Applicant:
OS
Respondent:
Mudgee Shire Council

FILE NUMBER: 093179

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 22 October 2009

DATE OF DECISION:
17 December 2009

BEFORE: Molony P - Judicial Member

MATTER FOR DECISION: Preliminary Matter

LEGISLATION CITED: Privacy and Personal Information Protection Act 1998
Local Government Act 1993
Environmental Planning and Assessment Act 1979

CASES CITED: NSW Fire Brigades [2005] NSW ADT 73
WL v Randwick City Council [2007] NSW ADTAP 58
Vice- Chancellor Macquarie University v FM [2005] NSWCA 192

REPRESENTATION:
Applicant Representative:
In person
Respondent Representative:
P Crennan, solicitor

ORDERS: 1. I find that points 1, 2, 3 and 4 contain personal information about OS within the meaning of s 4(1) of the Privacy and Personal Information Protection Act 1998 which information is not excluded from the definition of personal information by s 4(3)(b).
2. I find that point 5 does not contain personal information about OS within the meaning of s 4(1) of the Privacy and Personal Information Protection Act 1998. The Tribunal has no jurisdiction with respect to the OS’ complaints relating to that information.
3. I find that point 6 contains personal information about OS within the meaning of s 4(1) of the Privacy and Personal Information Protection Act 1998. I decline to determine whether that information is excluded from the definition of personal information by s 4(3)(b), without further evidence and submissions.
4. I direct that this matter be listed for a further planning meeting before me at a time and date to be fixed at which the further progress of the matter will be discussed and any necessary directions made.

REASONS FOR DECISION

Background

1 On 30 March 2009 OS applied under the Privacy and Personal Information Protection Act 1998 (the PPIPA) to the General Manager of the Mid-Western Regional Council (the Agency) for an internal review of conduct by the Agency relating to the review of the rating category assigned to a property owned by OS and his wife.

2 The conduct identified by OS in his internal review request related to a business paper prepared by the Agency’s Revenue Supervisor. This was presented to a meeting of the Council, along with maps and other documents, on 4 February 2009 (the report). OS said that the business paper and attachments contained ‘personal information about our land use’ which he claimed had been variously improperly collected, held, used and disclosed in breach of the Information Privacy Principles established by the PPIPA.

3 The report recommended that Council confirm a decision by Agency staff that the property be categorized for rating purpose as Business from 1 July 2008, rather than Residential as it had in the past. The report indicated that OS and his wife ‘have concerns … regarding the Declarations and seek to have the matter resolved without the need to appeal to the Land and Environment Court.’ The report identified OS and his wife and the address of…

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 OS v Mudgee Shire 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 315
Decision Date: 17 December 2009

CaseChat Overview and Summary

In the matter of OS versus Mudgee Shire Council, the Privacy Commissioner of New South Wales was tasked with reviewing the Council's handling of personal information in accordance with the Privacy and Personal Information Protection Act 1998. The primary concern was whether the Council had adequately managed and disclosed personal information belonging to the complainant, OS, and if it had breached any privacy laws in the process.

The key legal issues before the court were whether specific pieces of information held by the Council qualified as personal information under the Act, and if so, whether these pieces of information were subject to any exemptions that might allow for their disclosure without consent. The court had to determine if points 1 to 6 of the complaint contained personal information and if any such information was exempt from the Act's protections.

The court held that points 1, 2, 3, and 4 of the complaint contained personal information about OS, as defined by section 4(1) of the Privacy and Personal Information Protection Act 1998. These pieces of information were not excluded from the definition of personal information by section 4(3)(b) of the Act. Conversely, point 5 did not contain personal information, and therefore, the Tribunal had no jurisdiction over OS’ complaints relating to that information. Regarding point 6, the court found it did contain personal information but declined to determine if it was exempt from the Act's protections due to insufficient evidence and submissions. The court directed that the matter be listed for a further planning meeting to discuss progress and provide necessary directions.

Orders

Orders of the court

1. I find that points 1, 2, 3 and 4 contain personal information about OS within the meaning of s 4(1) of the Privacy and Personal Information Protection Act 1998 which information is not excluded from the definition of personal information by s 4(3)(b).

2. I find that point 5 does not contain personal information about OS within the meaning of s 4(1) of the Privacy and Personal Information Protection Act 1998. The Tribunal has no jurisdiction with respect to the OS’ complaints relating to that information.

3. I find that point 6 contains personal information about OS within the meaning of s 4(1) of the Privacy and Personal Information Protection Act 1998. I decline to determine whether that information is excluded from the definition of personal information by s 4(3)(b), without further evidence and submissions.

4. I direct that this matter be listed for a further planning meeting before me at a time and date to be fixed at which the further progress of the matter will be discussed and any necessary directions made.

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:	OS v Mudgee Shire Council [2009] NSWADT 315
DIVISION:	General Division
PARTIES:	Applicant: OS Respondent: Mudgee Shire Council
FILE NUMBER:	093179
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	22 October 2009
DATE OF DECISION:	17 December 2009
BEFORE:	Molony P - Judicial Member
MATTER FOR DECISION:	Preliminary Matter
LEGISLATION CITED:	Privacy and Personal Information Protection Act 1998 Local Government Act 1993 Environmental Planning and Assessment Act 1979
CASES CITED:	NSW Fire Brigades [2005] NSW ADT 73 WL v Randwick City Council [2007] NSW ADTAP 58 Vice- Chancellor Macquarie University v FM [2005] NSWCA 192
REPRESENTATION:	Applicant Representative: In person Respondent Representative: P Crennan, solicitor
ORDERS:	1. I find that points 1, 2, 3 and 4 contain personal information about OS within the meaning of s 4(1) of the Privacy and Personal Information Protection Act 1998 which information is not excluded from the definition of personal information by s 4(3)(b). 2. I find that point 5 does not contain personal information about OS within the meaning of s 4(1) of the Privacy and Personal Information Protection Act 1998. The Tribunal has no jurisdiction with respect to the OS’ complaints relating to that information. 3. I find that point 6 contains personal information about OS within the meaning of s 4(1) of the Privacy and Personal Information Protection Act 1998. I decline to determine whether that information is excluded from the definition of personal information by s 4(3)(b), without further evidence and submissions. 4. I direct that this matter be listed for a further planning meeting before me at a time and date to be fixed at which the further progress of the matter will be discussed and any necessary directions made.