The Ombudsman v Koopman - [2003] NSWCA 277

Reported Decision:
58 NSWLR 182

Court of Appeal

CITATION: The Ombudsman v Koopman & Anor [2003] NSWCA 277

HEARING DATE(S): 30/06/03

JUDGMENT DATE:
29 September 2003

JUDGMENT OF: Mason P at 1; Meagher JA at 7; Santow JA at 37

DECISION: Orders 1-5 as set out in the Claimant's Summons.

CATCHWORDS: ADMINISTRATIVE LAW: Judicial Review - Administrative Decisions Tribunal - Ombudsman Act - Privacy and Personal Information Protection Act

LEGISLATION CITED: Privacy and Personal Information Protection Act 1988 (PPIPA)
s 35A(2) Ombudsman Act 1974 (NSW)
Freedom of Information Act 1989 (NSW)

CASES CITED: Koopman v New South Wales Ombudsman [2002] NSWADT 103 at [68]
Saraswati v R (1991) 172 CLR 1 at 17

PARTIES :
The Ombudsman
v
Robert Koopman & Administrative Decisions Tribunal

FILE NUMBER(S): CA 40086 of 2003

COUNSEL: A: P Garling SC
R1: P Singleton

SOLICITORS: A: Sparke Helmore
R: I V Knight - Crown Solicitor

LOWER COURTJURISDICTION: Administrative Decisions Tribunal

LOWER COURT FILE NUMBER(S): 30060/02

LOWER COURT
JUDICIAL OFFICER : O'Connor DCJ

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CA 40086 of 2003

MASON P
MEAGHER JA
SANTOW JA
Monday, 29 September 2003

THE OMBUDSMAN v KOOPMAN & ANOR

FACTS
These proceedings concerned the review of a decision of O’Connor DCJ, sitting as President of the Administrative Decisions Tribunal.

They turned upon a challenge by the Ombudsman (the Claimant) to the jurisdiction of the Tribunal (the Second Opponent) to hear and determine proceedings brought by Mr Robert Koopman (the First Opponent) against the Ombudsman, pursuant to s. 55 of the Privacy and Personal Information Protection Act 1998 (NSW).

This challenge to jurisdiction was founded upon the Claimant’s contention that s. 35A of the Ombudsman Act 1974 (NSW) deprived the Tribunal of the jurisdiction to hear Mr Koopman’s application. O’Connor DCJ held that the Tribunal did have jurisdiction in respect of the matter ( Koopman v Ombudsman’s Office [2002] NSWADT 103), and that was the question that fell for determination in the Court of Appeal.

HELD per Meagher JA, allowing the appeal (Mason P and Santow JA agreeing):
The Privacy and Personal Information Protection Act 1998 (NSW) does not expressly repeal s.35A of the Ombudsman Act 1974 (NSW). Nor does it do so by implication. It is possible to comply with both Acts. Section 35A of the Ombudsman Act merely imposes a condition precedent to the utilisation of the process set out in s.55 of the Privacy and Personal Information Protection Act , and that, in certain cases only. Saraswati v R (1991) 172 CLR 1, referred to. [20]

HELD per Mason P (Santow JA agreeing):
In issue is the scope of s.35A of the Ombudsman Act in its application to a claim for compensation and other relief brought in reliance upon s.55 of the Privacy and Personal Information Protection Act . It does not assist to point to review procedures in the latter Act to which the Ombudsman may be subject, that are not in the nature of civil proceedings. Accountability at one level does not assist in…

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 The Ombudsman v Koopman

Details

AGLC: The Ombudsman v Koopman [2003] NSWCA 277
Case: [2003] NSWCA 277
Decision Date: 29 September 2003

CaseChat Overview and Summary

The Ombudsman (the applicant) sought judicial review of decisions made by the Administrative Decisions Tribunal (the respondent) concerning the privacy of Mr. Koopman. The dispute centred on the Tribunal's findings and orders regarding the Ombudsman's investigation into a complaint made by Mr. Koopman about the privacy practices of a government agency.

The primary legal issues before the Court of Appeal were whether the Tribunal had erred in law in its interpretation and application of the *Ombudsman Act 1974* (NSW) and the *Privacy and Personal Information Protection Act 1998* (NSW). Specifically, the court considered whether the Tribunal had correctly determined the scope of the Ombudsman's powers and the extent of the Tribunal's own jurisdiction in reviewing the Ombudsman's actions.

The Court of Appeal found that the Tribunal had misconstrued the relevant legislative provisions. It held that the Ombudsman's investigative powers under the *Ombudsman Act* were broad and that the Tribunal's review of the Ombudsman's decision was limited to ensuring procedural fairness and adherence to the law, rather than re-examining the merits of the Ombudsman's findings. The court applied principles of administrative law concerning the jurisdiction of review bodies and the interpretation of statutory powers.

The Court of Appeal made orders 1 to 5 as set out in the Claimant’s Summons, effectively quashing the decisions of the Administrative Decisions Tribunal and remitting the matter for reconsideration according to law.

Orders

Orders of the court

Orders 1-5 as set out in the Claimant’s Summons.

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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CITATION:	The Ombudsman v Koopman & Anor [2003] NSWCA 277
HEARING DATE(S):	30/06/03
JUDGMENT DATE:	29 September 2003
JUDGMENT OF:	Mason P at 1; Meagher JA at 7; Santow JA at 37
DECISION:	Orders 1-5 as set out in the Claimant's Summons.
CATCHWORDS:	ADMINISTRATIVE LAW: Judicial Review - Administrative Decisions Tribunal - Ombudsman Act - Privacy and Personal Information Protection Act
LEGISLATION CITED:	Privacy and Personal Information Protection Act 1988 (PPIPA) s 35A(2) Ombudsman Act 1974 (NSW) Freedom of Information Act 1989 (NSW)
CASES CITED:	Koopman v New South Wales Ombudsman [2002] NSWADT 103 at [68] Saraswati v R (1991) 172 CLR 1 at 17
PARTIES :	The Ombudsman v Robert Koopman & Administrative Decisions Tribunal
FILE NUMBER(S):	CA 40086 of 2003
COUNSEL:	A: P Garling SC R1: P Singleton
SOLICITORS:	A: Sparke Helmore R: I V Knight - Crown Solicitor

LOWER COURTJURISDICTION:	Administrative Decisions Tribunal
LOWER COURT FILE NUMBER(S):	30060/02
LOWER COURT JUDICIAL OFFICER :	O'Connor DCJ