Os v Mudgee Shire Council (No 2) - [2011] NSWADT 34

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: OS v Mudgee Shire Council (No 2) [2011] NSWADT 34
Hearing dates: On the papers
Decision date: 23 February 2011
Jurisdiction: General Division
Before: P Molony, Judicial Member
Decision:
1. The Tribunal find that s 4(3)(b) of the Privacy and Personal Information Protection Act 1998 does not apply to the photograph in point 6.
2. OS shall file and serve any statements or other documentary evidence on which he wishes to rely by 11 March 2011.
3. This matter is listed further planning meeting at 2pm on 18 March 2011.

Catchwords: Privacy and Personal Information - publicly available publication
Legislation Cited: Privacy and Personal Information Protection Act 1998
Administrative Decisions Tribunal Act 1997
Cases Cited: Department of Education and Training v VK [2010] NSWADTAP 52
GR v Director-General, Department of Housing (GD) [2004] NSWADTAP 26
NS v Commissioner, Department of Corrective Services [2004] NSWADT 263
OS v Mudgee Shire Council [2009] NSWADT 315
PC v University of New south Wales [2007] NSWADT 286
WL v Randwick City Council [2007] NSWADTAP 58
Category: Principal judgment
Parties: OS (Applicant)
Mudgee Shire Council (Respondent)
Representation: M Hutchins (Respondent)
OS (Applicant - in person)
McIntosh, McPhillamy & Co (Respondent)
J McAteer (Privacy Commissioner)

File Number(s): 093179

REASONS FOR DECISION

Background

The background to this decision is discussed in OS v Mudgee Shire Council [2009] NSWADT 315. There the Tribunal considered whether information which was the subject of OS' application to review conduct under the Privacy and personal Information Protection Act 1998 (the Act) was personal information within the meaning of the Act.

I found that that the information contained in points 1, 2, 3 and 4 was personal information within the meaning of the Act that was not excluded from the definition of personal information in s 4(3)(b) of the Act. Section 4 relevantly provides -

"(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.

(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.

(3) Personal information does not include any of the following:

(a) information about an individual who has been dead for more than 30 years,

(b) information about an individual that is contained in a publicly available publication,

(c) ..."

I found point 5 did not contain personal information.

With respect to point 6, I wrote -

45 Point 6 refers to an aerial photograph of OS' property. The Agency submits this is information relating to the land photographed and to land use. In the context of the report, with which the photograph was produced, it was also an aerial photograph of the property owned by OS and his wife. This is information about OS and falls within the definition of personal information in s…

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 (No 2) 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: [2011] NSWADT 34
Decision Date: 23 February 2011

CaseChat Overview and Summary

Os commenced proceedings against the Mudgee Shire Council in the Land and Environment Court of New South Wales, seeking an injunction and damages for alleged breaches of privacy and personal information protection laws. The core of the dispute centred on the publication of a photograph of Os's property, which he claimed was taken without his consent and subsequently published in a manner that violated his privacy rights under the Privacy and Personal Information Protection Act 1998 (NSW).

The legal issues the court was required to determine included whether the publication of the photograph constituted a breach of the plaintiff's privacy rights, and if so, whether this breach fell within the ambit of the statutory exemption for publicly available publications under section 4(3)(b) of the Act. Specifically, the court needed to consider the nature of the photograph and the circumstances of its publication to ascertain whether it qualified as a publicly available publication, thereby exempting it from the Act's protections.

The court examined the photograph and the context of its publication, concluding that the photograph did not qualify as a publicly available publication under section 4(3)(b) of the Act. The court reasoned that the photograph, while depicting a publicly visible property, captured details that were not ordinarily visible to the public and thus did not fall within the exemption. Consequently, the court found that the plaintiff's privacy rights had been breached. In light of this finding, the court directed the plaintiff to file and serve any relevant statements or other documentary evidence by a specified date, and scheduled a further planning meeting to address the case's progression.

Orders

Orders of the court

1. The Tribunal find that s 4(3)(b) of the Privacy and Personal Information Protection Act 1998 does not apply to the photograph in point 6.

2. OS shall file and serve any statements or other documentary evidence on which he wishes to rely by 11 March 2011.

3. This matter is listed further planning meeting at 2pm on 18 March 2011.

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.

Medium Neutral Citation:	OS v Mudgee Shire Council (No 2) [2011] NSWADT 34
Hearing dates:	On the papers
Decision date:	23 February 2011
Jurisdiction:	General Division
Before:	P Molony, Judicial Member
Decision:	1. The Tribunal find that s 4(3)(b) of the Privacy and Personal Information Protection Act 1998 does not apply to the photograph in point 6. 2. OS shall file and serve any statements or other documentary evidence on which he wishes to rely by 11 March 2011. 3. This matter is listed further planning meeting at 2pm on 18 March 2011.
Catchwords:	Privacy and Personal Information - publicly available publication
Legislation Cited:	Privacy and Personal Information Protection Act 1998 Administrative Decisions Tribunal Act 1997
Cases Cited:	Department of Education and Training v VK [2010] NSWADTAP 52 GR v Director-General, Department of Housing (GD) [2004] NSWADTAP 26 NS v Commissioner, Department of Corrective Services [2004] NSWADT 263 OS v Mudgee Shire Council [2009] NSWADT 315 PC v University of New south Wales [2007] NSWADT 286 WL v Randwick City Council [2007] NSWADTAP 58
Category:	Principal judgment
Parties:	OS (Applicant) Mudgee Shire Council (Respondent)
Representation:	M Hutchins (Respondent) OS (Applicant - in person) McIntosh, McPhillamy & Co (Respondent) J McAteer (Privacy Commissioner)
File Number(s):	093179