Ward v Secretary, Department of Communities and Justice

[2025] NSWCATAD 232

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Ward v Secretary, Department of Communities and Justice [2025] NSWCATAD 232

Hearing dates:

On the papers

Date of orders:

17 September 2025

Decision date:

17 September 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

A Falk, Senior Member

Decision:

(1) A hearing is dispensed with under s 50(2) of the NCAT Act.

(2) The publication restriction order made 17 March 2025 is revoked under s 64(3) of the NCAT Act.

(3) The Review Application is dismissed and the Tribunal will not take any action on the matter.

(4) Any Costs Application should be filed by the Respondent within three weeks of the date of this decision.

(5) In the event that the Respondent files a Costs Application, the matter is listed for the next available Directions.

Catchwords:

ADMINISTRATIVE LAW — application for summary dismissal — whether there is jurisdiction to review conduct under the Privacy and Personal Information Protection Act 1998 — access application finalised under the Government Information (Public Access) Act 2009 — interaction between Acts.

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Civil and Administrative Tribunal Rules 2014

Government Information (Public Access) Act 2009

Privacy and Personal Information Protection Act 1998

Cases Cited:

Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256

BDK v Department of Education and Communities [2015] NSWCATAP 129

Commissioner of Police, NSW Police Force v Ritson [2023] NSWCA 300

Davis v Minister for Health [2022] NSWCATAD 342

Davis v NSW Minister for Health [2023] NSWCATAP 211

ECR v Public Guardian [2021] NSWCATAD 141

EJE v Department of Education [2023] NSWCATAD 132

General Steel Industry v Commissioner for Railways (1964) 112 CLR 125

Texts Cited:

None cited

Category:

Procedural rulings

Parties:

David Ward (Applicant)
Secretary, Department of Communities and Justice (Respondent)

Representation:

Applicant (Self-Represented)
Department of Communities and Justice (Legal) (Respondent)

File Number(s):

2025/00078249

Publication restriction:

Nil

REASONS FOR DECISION

Overview

1. This is an application made by the Secretary, Department of Communities and Justice (the Respondent) on 14 March 2025 asking the Tribunal to summarily dismiss an Administrative Review Application made on 27 February 2025 (the Review Application).

2. This application to dismiss the Review Application is made on the papers in the absence of the parties in accordance with s 50 of the Civil and Administrative Tribunal Act 2013 (NCAT Act).

3. The Review Application was made by Mr Ward (the Applicant) who asks the Tribunal to review conduct of the Respondent that they allege breaches the Privacy and Personal Information Protection Act 1998 (PPIP Act).

4. On 13 July 2023, the Applicant made an online application for specified “video footage and sound recordings” (CCTV) held by the Respondent that contained their image (GIPA application). The online application was made under the Government Information (Public Access) Act 2009 (GIPA Act).

5. Following a number of procedural steps, including an application by the Applicant to the Tribunal for review of the Respondent’s decision under the GIPA Act, the Respondent provided the Applicant with a redacted copy of the CCTV footage and facilitated an online viewing by the Applicant of the unredacted CCTV footage. The Applicant being sufficiently satisfied of the information provided by the Respondent, withdrew proceedings that they had brought in the Tribunal for review of the Respondent’s decision under the GIPA Act.

6. The Applicant wishes to continue the current Review Application proceedings for an alleged breach of the PPIP Act. The Respondent’s conduct that the Applicant alleges breaches the PPIP Act relates to the GIPA application. The Tribunal understands the Applicant is alleging that the Respondent breached the PPIP Act in the manner in which the Respondent processed their application for access to their personal information under the GIPA Act.

7. The Applicant alleges that the Respondent did not provide access to their personal information under the GIPA Act in accordance with the requirements of s 14 of the PPIP Act as there was excessive delay and expense in providing access to the information under the GIPA Act, the Respondent imposed conditions which were not available to the Respondent under the PPIP Act, acted in accordance with an internal policy that prejudiced the Applicant and failed to provide a statutory notice.

8. The Respondent submits that the Tribunal should dismiss the Review Application on the ground that it is frivolous, vexatious or otherwise misconceived or lacking in substance. Alternatively, the Respondent submits that the Tribunal should decide not to take any action on the matter.

9. For reasons set out below, the Tribunal has decided to dismiss the Applicant’s Review Application. The Tribunal does not have jurisdiction to review conduct under s 14 of the PPIP Act as no access request has been made by the Applicant. In the event that the Tribunal does have jurisdiction, the Tribunal dismisses the proceedings because they are misconceived or lacking in substance. The Tribunal has also decided not to take any action on the matter.

Background

10. As the Applicant has made applications under both the GIPA Act and the PPIP Act it is relevant to set out the events that led to the current Review Application. The Respondent filed a “Timeline of Events” which the Tribunal has referred to in addition to the source documents provided by both parties.

Applications made by the Applicant under the GIPA Act

11. On 13 July 2023, the Applicant made an online application for “video footage and sound recordings” (CCTV) held by the Respondent that contained their image at a specified date and time. The online application was expressly made under the GIPA Act and the $30 fee paid (the GIPA application). In the GIPA application the Applicant stated that “I am happy to receive video copy with other faces and distinguishing features redated if that assists you with your duty of care for privacy.”

12. On 27 August 2023, the Respondent gave the Applicant a Notice of Decision under the GIPA Act. In the Notice the Respondent decided in accordance with s 72(1)(a) of the GIPA Act to provide the Applicant with access to the information by providing a reasonable opportunity to inspect the CCTV footage, rather than providing a copy, stating that:

“This is because I have decided that there is an overriding public interest against providing you with a copy of the footage, but that the public interest lies in favour of providing you with a view-only access to the footage.

View-only access to the footage can be facilitated online (where possible). Please contact me at... to organise a suitable time for you to view the footage.”

13. On 29 September 2023, the Respondent advised the Applicant by email that “it would be more appropriate to conduct the viewing in person, rather than online” at the Respondent’s Paramatta office.

14. On the same day the Applicant replied by email and asked the Respondent to reconsider to allow the Applicant to view the footage online. The Applicant advised that they live interstate and specified other personal circumstances.

15. The Respondent replied that day stating that they “have been advised that as an internal policy we now conduct CCTV viewings in person to ensure the applicant does not record the footage.” The Respondent acknowledged the extenuating circumstances of the Applicant and advised they will consider an alternative solution and come back to the Applicant the following week.

16. On 3 October 2023, the Applicant lodged an application with the Information and Privacy Commissioner (IPC) seeking an external review of the Respondent’s Notice of Decision made under the GIPA Act.

17. On 6 October 2023, the Respondent emailed the Applicant stating that they have been advised that the Applicant has applied to the IPC for review of the Department’s original decision. Accordingly, the Respondent was of the view that it would be appropriate to wait for the outcome of the IPC’s decision before making further decisions regarding providing access to the footage.

18. On 4 December 2023, the IPC affirmed the Respondent’s GIPA Notice of Decision made under the GIPA Act.

19. On the 6 December 2023, the Respondent emailed the Applicant advising that as the IPC had issued their formal review decision upholding the original decision it would now be appropriate to revisit the issue of facilitating access to the footage:

“As I have mitigated some of the concerns with viewing the footage, I believe we can proceed with facilitating view only access online. Accordingly, can you please advise a suitable time to view the footage online via MS Teams.”

20. On 5 January 2024, the Applicant lodged an application with the Tribunal seeking an external review of the Department’s Notice of Decision made under the GIPA Act.

21. On 8 February 2024, following orders made by the Tribunal on 6 February 2024, the Respondent provided the Applicant with a redacted copy of the video footage and on 14 February 2024 facilitated an online viewing for the Applicant of the unredacted copy of the video footage.

22. On 26 February 2024, the Applicant informed the Respondent that he is agreeable to withdrawing the Tribunal application for review of the GIPA decision because “the redacted copies while crude are suitable for my proposed purpose.”

23. On 1 March 2024, the Tribunal dismissed the GIPA Act review proceedings.

Applications made by the Applicant under the PPIP Act

24. On 20 December 2024, the Applicant made a complaint and application for internal review under the PPIP Act to the Respondent.

25. On 31 January 2025, the Respondent updated the Applicant and advised that a draft decision on the Internal Review has been sent to the IPC for review and anticipates providing the final report to the Applicant by 21 February 2021, depending on the nature of the IPC’s comments and submissions.

26. On 18 February 2025, the Respondent updated the Applicant advising that the IPC are still reviewing the draft decision and may require additional time. The Respondent sought a further extension to the due date to 28 February 2025 to consider any submissions made by the Privacy Commissioner.

27. On 20 February 2025, the IPC completes its review of the draft decision and provides the Respondent with its submissions.

28. By document dated 26 February 2025, the Respondent provided the Applicant with the outcome and findings of the Privacy Internal Review Decision (Internal Review). The Internal Review found that the Applicant had not identified reviewable conduct within the meaning of the PPIP Act, as there had been no application made in accordance with s 14. The Internal Review found therefore, the Applicant did not have a right of review under s 53 of the PPIP Act.

29. On 27 February 2025, the Applicant applied to the Tribunal for an administrative review of the Respondent’s alleged conduct.

30. On 3 March 2025, the Applicant wrote to the Tribunal advising that they had received a copy of the Internal Review and they wished to proceed with the Administrative Review Application.

Material before the Tribunal

31. The Applicant relies on the following written submissions and documents:

1. Administrative Review Application form filed 27 February 2025 including a letter from the Applicant to the Tribunal dated 24 February 2025 attaching correspondence between the Applicant and the Respondent.

2. Letter from the Applicant filed 6 March 2025 attaching the Respondent’s Internal Review under the PPIP Act dated 26 February 2025.

3. Rebuttal submissions of the Applicant filed 26 May 2025 attaching 2 documents:

1. Document marked “Exhibit 1”: Order of the Tribunal of 6 February 2024 in the matter of the Applicant’s GIPA Act application for review

2. Document marked “Exhibit 2”: Applicant’s application for NCAT Administrative Review of GIPA Act “form of Access” decision relating to CCTV footage information held by the Department.

32. The Respondent relies on the following submissions and documents:

1. Respondent’s Application for Dismissal of Proceedings filed 14 March 2025

2. Respondent’s submissions in support of application to dismiss proceedings attaching 16 Annexures, filed 14 March 2025

3. Document titled “Timeline of Events” filed 14 March 2025

4. Respondent’s submissions in reply filed 17 June 2025.

Statutory framework

Review of Conduct

33. Part 2 Division 1 of the PPIP Act contains “Information Protection Principles” (IPP). The IPP that applies to allow an individual access to their personal information is contained in s 14 of the PPIP Act. A public sector agency that holds personal information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information.

34. Part 5 of the PPIP Act provides for review of certain “conduct”, which under s 52 of the PPIP Act, includes the alleged contravention by a public sector agency of an IPP.

35. Section 53 of the PPIP Act provides for an internal review by a public sector agency. Under s 53(1) a person “who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct.”  

36. If a person who has made an application for internal review under s 53 of the PPIP Act is not satisfied with the findings of the review or the action taken by the public sector agency in relation to the application, the person may apply to the Tribunal for an administrative review “of the conduct that was the subject of the application under section 53”: s 55(1) of the PPIP Act.

37. Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the Tribunal must decide what the correct and preferable decision is having regard to the material before it.

Dispensing with a Hearing

38. Under s 50(1)(c) of the NCAT Act the Tribunal may make an order dispensing with a hearing. The Tribunal may make the order if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal (s 50(2)). The Tribunal may not make such an order unless the Tribunal has first afforded the parties an opportunity to make submissions about the proposed order and taken any such submissions into account.

39. Under s 50(1)(d) of the NCAT Act a hearing is not required in circumstances as prescribed by the procedural rules. Rule 36A(a) of the Civil and Administrative Tribunal Rules 2014 (NCAT Rules) prescribes proceedings for an interlocutory or ancillary decision for the purposes of s 50(1)(d) of the NCAT Act if the parties consent to the making of the decision.

40. Under s 50(4) of the NCAT Act the Tribunal may determine proceedings where a hearing is not required in accordance with the requirements of the NCAT Act, enabling legislation and the procedural rules.

Dismissal of proceedings

41. Section 55 of the NCAT Act provides that the Tribunal may dismiss at any stage any proceedings before it if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance.

42. Under s 55(2) of the PPIP Act on reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter.

Confidentiality orders

43. Under s 64 of the NCAT Act the Tribunal may make a confidentiality order if satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason. A confidentiality order may also be varied or revoked under s 64(3) of the NCAT Act.

Interaction between the PPIP Act and the GIPA Act

44. Section 25 of the PPIP Act states that:

25   Exemptions where non-compliance is lawfully authorised or required

A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if—

(a)  the agency is lawfully authorised or required not to comply with the principle concerned, or

(b)  non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998).

45. Section 20(5) of the PPIP Act relevantly states that:

20   General application of information protection principles to public sector agencies

(1)  The information protection principles apply to public sector agencies.

(2)  The application of the principles to public sector agencies—

(a)  may be modified by privacy codes of practice, and

(b)  is otherwise subject to this Act.

….

(5) Without limiting the generality of section 5, the provisions of the Government Information (Public Access) Act 2009 that impose conditions or limitations (however expressed) with respect to any matter referred to in section 13, 14 or 15 are not affected by this Act, and those provisions continue to apply in relation to any such matter as if those provisions were part of this Act.

46. Section 5 of the PPIP Act states that:

5   Government Information (Public Access) Act 2009 not affected

(1)  Nothing in this Act affects the operation of the Government Information (Public Access) Act 2009.

(2)  In particular, this Act does not operate to lessen any obligations under the Government Information (Public Access) Act 2009 in respect of a public sector agency.

47. Section 72(1) of the Government Information (Public Access) Act (GIPA Act) provides:

72   Forms of access

(1)  Access to government information in response to an access application may be provided in any of the following ways—

(a)  by providing a reasonable opportunity to inspect a record containing the information,

(b)  by providing a copy of a record containing the information,

(c)  by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned),

(d)  by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format.

(2)  The agency must provide access in the way requested by the applicant unless—

…

(d)  there is an overriding public interest against disclosure of the information in the way requested by the applicant.

Note.

Decisions about how to provide access are reviewable under Part 5.

In person hearing is dispensed with

48. On 17 March 2025, the Tribunal, differently constituted, made Orders in this matter. Orders 3 and 4 made provision for the parties to file and serve any material in relation to the Respondent’s “strike out / summary dismissal application” including submissions as to whether the hearing can be dealt with in the absence of the parties.

49. Order 5 then states that both parties made oral submissions at the Case Conference on 17 March 2025 on proceeding with the “strike out application / summary dismissal hearing on the papers.” The Tribunal ordered that a hearing on the application is dispensed with and the application will be determined on the papers.

50. Order 5 also states that the parties consented to dispensing with a hearing on the application and to the Tribunal determining the application based on the papers, referring to Rule 36A(a) of the Civil and Administrative Tribunal Rules 2014 (NCAT Rules).

51. Having reviewed the Applicant’s Rebuttal submissions this Tribunal notes that the Applicant concludes by stating that they “would ask the Tribunal to continue with the current PPIP Act proceedings to a Hearing for case number 2025/00078249.” Given that no written submissions were made by the Applicant seeking an in-person hearing, and taking into account the orders made on 17 March 2025, the Tribunal considers the Applicant’s reference to “a Hearing” to be a hearing on the papers.

48. In any event having considered the submissions and documents relied upon by the parties, this Tribunal is satisfied that the matter can be adequately determined in the absence of the parties. Therefore a hearing is dispensed with under s 50(2) of the NCAT Act.

Publication restriction is revoked

53. On 17 March 2025, the Tribunal, differently constituted, made an order pursuant to s 64(1)(a) of the NCAT Act prohibiting publication or broadcast of the name of the Applicant (publication restriction order).

54. This Tribunal sought submissions from the Applicant and Respondent as to whether they object to the Applicant being named in the proceedings and if so the grounds for that objection. The Applicant did not object to being named in these proceedings and the Respondent submitted that the Applicant should be named.

55. The Tribunal does not consider that the nature of the evidence or any other matter makes it desirable to make a confidentiality order in these proceedings. Under s 64(3) of the NCAT Act the Tribunal revokes the publication restriction order made 17 March 2025.

Jurisdiction

56. The Respondent made a finding in its Privacy Internal Review Decision of 26 February 2025 (Internal Review) that the Applicant did not have a right of review under s 53 of the PPIP Act. This is because the Respondent found that the Applicant had not identified reviewable conduct within the meaning of the PPIP Act, as there had not been an application made in accordance with s 14 of that Act.

57. Under s 52 of the PPIP Act, “conduct” includes the alleged contravention by a public sector agency of an IPP. Under s 53 of the PPIP Act, a person who is aggrieved by “conduct” of a public sector agency, relevantly an alleged contravention of an IPP, is entitled to a review of that conduct by the agency.

58. Under s 55, the person who made an internal review application may apply to the Tribunal for an administrative review of the conduct that was the subject of the application under s 53, where the person is not satisfied with the findings of the review or the action taken by the agency in relation to their application.

59. On one view, an alleged contravention of an IPP entitles an applicant to an internal review by a public sector agency and subsequent Administrative Review by the Tribunal. However, the Tribunal considers that the better view is that ss 52, 53 and 55 ought to be read alongside the relevant IPP that is alleged to have been contravened. In circumstances where there is no way to enliven a possible contravention of s 14 of the PPIP Act, the Tribunal considers that the rights in s 53 and 55 are not invoked.

60. For the reasons set out at [89]-[92] below, the Tribunal finds that the Applicant has not made a “request” for their personal information that would enliven s 14 of the PPIP Act. As a result, there is no “conduct” entitling the Applicant to an internal review.

61. The right to apply to the Tribunal is specified in s 55(1) as a right to apply for administrative review “of the conduct that was the subject of the application under section 53”. It follows that if there is no reviewable conduct under s 53 of the PPIP Act, the Tribunal does not have jurisdiction under s 55 to review that conduct.

62. The Tribunal has considered the Respondent’s grounds for dismissal in the reasons that follow, in the event that the Tribunal does have jurisdiction to hear the Review Application.

Legal principles

63. In EJE v Department of Education [2023] NSWCATAD 132 at [42] the Tribunal reiterated well established law that an application ought not to be decided in a summary way other than in the clearest of cases and with exceptional caution. In considering an application for summary dismissal, the substantive applicant’s case must be taken at its highest.

64. The onus is on the Respondent to establish that the Applicant’s Review Application is so obviously untenable that it cannot succeed, is manifestly groundless, or discloses a case which the court is satisfied cannot proceed: General Steel Industry v Commissioner for Railways (1964) 112 CLR 125; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256.

65. Appeal Panels have decided that the meaning of the four categories of conduct identified in s 55(1)(b) in the NCAT Act should be given a “reasonably broad connotation” to give the Tribunal a broad power to deal with abuses of its processes, “conscious always of the gravity for an applicant or plaintiff of summary dismissal of proceedings”: BDK v Department of Education and Communities [2015] NSWCATAP 129 at [66].

66. The Appeal Panel in Davis v NSW Minister for Health [2023] NSWCATAP 211 (Appeal Panel in Davis) at [53] agreed with the view in BDK that a “reasonably broad connotation” should be given to the meaning of each of the four categories of proceedings listed in s 55(1)(b) of the NCAT Act. The Appeal Panel stated at [53-55] that:

“[53] We agree with the view expressed by the Appeal Panel in BDK that a “reasonably broad connotation” should be given to the meaning of each of the four categories of proceedings listed in s 55(1)(b) of the NCAT Act. Ms Davis is correct that the phrase “lacking in substance” can mean proceedings where it is found that the initiating claim or application is based on an “untenable proposition of fact or law” or “is not reasonably arguable”. However, there is nothing in the text, context or purpose of s 55(1)(b) of the NCAT Act to suggest that these are the only findings which might justify the conclusion that the proceedings are lacking in substance. A range of findings could potentially justify a conclusion that proceedings are “lacking in substance”, including that the proceedings “would be of no practical effect”, or that the initiating application was based on an “untenable proposition of fact or law” or was “not reasonably arguable”. Equally, a range of findings could potentially justify a conclusion that proceedings are “vexatious”, “frivolous” or “misconceived” (see, e.g., the analysis of Roden J about the term vexatious in Attorney General v Wentworth at 491).”

[54] Section 55(1)(b) of the NCAT Act empowers the Tribunal to govern its own processes, to ensure that its processes are not abused and to ensure that its resources are applied to resolving real, not confected, amorphous or nebulous disputes. The Tribunal arguably could have dismissed the Application on the basis that, while not initially, it had become vexatious (although not intended to be) or misconceived because any “success” achieved by Ms Davis could have had no practical effect due to the passage of time and the expiration of the Public Health orders. Proceedings, such as this one, which beg the question “So what?”, in essence lack legal substance and therefore have “no practical effect”.

[55] This ground has insufficient prospects of success to warrant a grant of leave.”

67. In Davis v Minister for Health [2022] NSWCATAD 342 (Davis 2022) at [45], the Tribunal said that it is “no part of the role of this Tribunal to give advisory opinions on issues which have become hypothetical questions or to use resources resolving proceedings the utility of which is either wholly lacking or extremely limited”. The Tribunal reasoned that that would be an improper use of the NCAT’s limited resources.

68. In ECR v Public Guardian [2021] NSWCATAD 141 at [29] the Tribunal stated:

The application of s20(5) of the PPIP Act is such that the agency is not required to disclose government information which is subject to an ’overriding public interest against disclosure’ within the meaning of those words in the GIPA Act. (See SL v University of Sydney [2011] NSWADT 65; SF v Shoalhaven City Council (2013) NSWADT 94, where Judicial Member Montgomery held, at [174], that ‘[a]n application made under the PPIPA should not yield a different outcome to an application made under the GIPA Act where the facts and circumstances are not materially different’.)

69. In Commissioner of Police, NSW Police Force v Ritson [2023] NSWCA 300 (Ritson) the Court of Appeal at [35] the Court of Appeal in Ritson dealt with the issue of how s 14 of the PPIP Act should be construed:

What is clear, however, is that within the Privacy Act, s 14 cannot be read in isolation. If it were so read, it would remove any basis for resistance to production under (i) the specific exemptions in s 23A(1), (revealing ASIO requests), (ii) the general exemptions, which apply to a number of sections including s 14, being s 24 (relating to investigative agencies), s 25 (where non-compliance is lawfully authorised or required) and s 27 (exemptions for certain law enforcement agencies, including the NSW Police Force), set out below.

70. At [38]:

Critical for present purposes is s 20(2)(b), which precludes reading s 14 in isolation from other sections in the Privacy Act containing conditions or limitations on access or on the process of considering a request.

71. At [43] to [51] the Court of Appeal considered the interrelationship of the PPIP Act with the GIPA Act. The Court considered the engagement of the GIPA Act and at [57] to [59] stated:

55. With that approach in mind, it is convenient to turn to the GIPA Act. …

…

58. Section 12(1) identifies “a general public interest in favour of the disclosure of government information”; s 13 provides that there is “an overriding public interest against disclosure of government information” where there are public interest considerations against disclosure which outweigh those in favour of disclosure. The section then provides that there is a conclusive presumption of an overriding public interest against disclosure in relation to matters described in Sch 1 to the GIPA Act and, further, that the only other public interest considerations to be taken into account are those listed in a table to s 14 of the GIPA Act itself.

59. As a general proposition, it may be accepted that those provisions should be understood as “conditions or limitations” which might be imported into the Privacy Act pursuant to s 20(5). On the other hand, the subject matter of the GIPA Act is public access, and one public interest against disclosure to members of the public is that the information may “reveal an individual’s personal information”. [19] That would not be a relevant public interest against a disclosure under legislation which is expressly designed to provide access to an applicant’s own personal information.

72. In Ritson the Court of Appeal confirmed that an agency’s ability to refuse to deal with an access application for specified reasons under s 60 of the GIPA Act constitutes a “condition or limitation” on access to that information for the purposes of s 20(5) of the PPIP Act. At [66] to [68] the Court of Appeal stated:

66. If the matter referred to in s 20(5) of the Privacy Act, arising under s 14, is “provision of access to information” then the ability of an agency to refuse to deal with an application for access to information for specified reasons should, in the ordinary meaning of the terms, constitute a ”condition or limitation” on that matter.

67. Contrary to the Privacy Commissioner’s submission, the fact that s 60 deals with an application under the GIPA Act does not preclude that construction. All provisions of the GIPA Act apply to disclosure of government information under that Act. For example, the public interest considerations referred to in s 13 of the GIPA Act are identified “for the purposes of this Act”; similarly, the public interest considerations listed in the table to s 14 are those that may be taken into account ”under this Act”. By analogy with provisions in federal laws picking up State laws and applying them to federal jurisdiction, to pick up a provision from one state Act and apply it in another State Act must involve some adaption of the original language in which it was expressed. [20]

68. As the earlier discussion reveals, the absence of any procedural provisions governing the provision of access under the Privacy Act in circumstances where some procedural constraints must apply suggests that the drafter was content to allow such necessary procedures to be adopted from the GIPA Act. The language of s 20(5) of the Privacy Act is apt to achieve that result.

73. The Court of Appeal in Ritson concluded (at [71]):

For these reasons, the provision of access to documents pursuant to a request under s 14 of the Privacy Act should be read down so as to exclude the need to process an application in circumstances where s 60(1)(a), subject to subs (4), is engaged. A similar result may be reached by a process of implication from the terms of the Privacy Act, by application of s 25(b).

Issue to be decided

74. The issue to be decided is whether the Respondent has established that the Applicant’s Review Application ought to be dismissed as the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance (s 55(1)(b) of the NCAT Act), or whether the Tribunal should otherwise decide not to take any action on the matter (s 55(2) of the PPIP Act).

75. The Respondent contends that the Review Application should be dismissed on three grounds:

1. There is no reviewable conduct under the PPIP Act for review

2. The Applicant is seeking to reventilate matters under the GIPA Act

3. The Applicant is unable to subvert the outcome of the previous application under the GIPA Act by an application under the PPIP Act.

Consideration

Position and evidence of the parties

Respondent

76. The Respondent contends that the Tribunal should dismiss the Review Application as misconceived and lacking in substance. The Respondent submits that its obligation under s 14 of the PPIP Act has not been invoked as the Applicant has not made an access request under the PPIP Act. The Respondent submits that in order to establish a breach of s 14 of the PPIP Act two conditions need to be met:

1. An individual requested their personal information from a public sector agency

2. The public sector agency failed to provide the individual with access to the requested information without excessive delay or expense.

77. The Respondent also submits that the Review Application is misconceived and lacking in substance because the applicant is seeking to re ventilate matters already determined under the GIPA Act, and subsequent external review proceedings. As the request for the CCTV footage has already been dealt with under the GIPA Act, the Respondent contends that proceedings should not be entertained as there will be no practical consequences for the Applicant.

78. The Respondent further contends that even if the Applicant had made an access request under s 14 of the PPIP Act, the outcome would have been no different to the outcome of the decision made under the GIPA Act as a result of the provisions of ss 5 and 20(5) of the PPIP Act.

Applicant

79. The Applicant states that he is not seeking access to personal information under the PPIP Act:

…. “I am not seeking access to personal information under my s-53 privacy complaint and/or the ‘current PPIP Act proceedings’.” (emphasis in original)

80. However, the Applicant submits that the Respondent does have obligations under s 14 of the PPIP Act in relation to personal information “being sought by a GIPA access applicant.” The Applicant refers to s 20(5) of the PPIP Act and contends that:

“…s-20(5) of the PPIP Act defines the scope of an agency’s privacy treatment of personal information being sought by a GIPA access application. Section 20(5) of the PPIP Act makes it clear that an agency acting as a GIPA Act information provider of personal information has a full obligation to meet s-14 of the PPIP Act, except where the agency has imported (“however expressed”) into its GIPA Act access decision a GIPA Act provision that allows the agency to vary demonstrably s-14 of the PPIP Act.”

81. The Applicant then refers to s 73(2) of the GIPA Act:

“Section-73(2) is the only GIPA Act provision which, if it had been imported as an expressed condition, would have allowed [the Respondent] to vary s-14 of the PPIP Act to block my online viewing of unredacted personal information, otherwise requiring me instead to commit to expensive in-person attendance in distant Sydney….From this it is seen that the application of s73(2) is not an obligatory import condition against s-14 of the PPIP Act”.

82. The Applicant refers to the absence of reference to s 73(2) of the GIPA Act in the Respondent’s GIPA Decision Notice and related communications.

83. The Applicant contends that requiring in person viewing of the CCTV footage “forced an excessive expense that was avoidable.” In addition, the Applicant submits that the delay was excessive as the Respondent only released his personal information in the CCTV video to him digitally under “the duress of an NCAT administrative review” and “the external force of the Order made” (emphasis in original). Accordingly, the Respondent failed of its own accord to provide the Applicant with access to the requested information without excessive expense or delay.

84. The Applicant also submits that the Respondent’s contention that even if the Applicant had made an access request under s 14 of the PPIP Act, the outcome would have been no different to the outcome of the decision made under the GIPA Act as a result of the provisions of ss 5 and 20(5) of the PPIP Act, is false. The Applicant contends that this is because under the GIPA Act the Respondent gave the Applicant access to an unredacted viewing of his personal information which also revealed third-party faces. The Applicant submits that this would not be possible under the PPIP Act as an information access request under the PPIP Act cannot provide an individual with personal information which reveals the personal information of third parties.

85. The Applicant is also concerned that the Respondent’s change in how access was to be provided to the Applicant under the GIPA Act, was not accompanied by a statutory notice under s 126(1) of the GIPA Act. That section provides that any notice or notification that is required to be given under the Act must include a statement that gives details of any right of review in respect of any decision of the agency with which the notice or notification is concerned.

86. The Applicant also contends that they were portrayed without evidence or cause as a dishonest person who would copy personal CCTV information while reviewing it online. The Applicant makes reference to the internal policy regarding “in person viewing” and describes it as a hidden internal policy.

87. The Applicant also refers to s24(1) of the GIPA Act which states that a person is not to be subjected to any prejudice because of the application of the provisions of an agency’s policy document to any act or omission of the person if at the time the person could lawfully have avoided the prejudice had the person been aware of those provisions. The Applicant’s position is that they could have avoided potential expense by requesting viewing under the supervision of a local office of the Tasmanian Justice Department had they been aware of the access policy at the time of making their application.

Findings and Outcome

88. The Applicant is aggrieved by the manner and form of the Respondent’s provision of access to the CCTV footage requested under the GIPA Act. The Applicant alleges that this constitutes a breach of s 14 of the PPIP Act because he incurred excessive delay and expense in accessing his personal information.

89. However, it is clear from a plain reading of s 14 of the PPIP Act that the obligation on a public sector agency to provide an individual with access to personal information is triggered by a “request of the individual to whom the information relates.”

90. An individual need not identify the relevant legislation or specific provision in order to request access to their personal information. However, in this case, the Applicant clearly made an application under the GIPA Act to access information about them. The application was processed by the Respondent under the GIPA Act and access was provided under that Act.

88. In contending that the Respondent’s manner of processing the GIPA application was contrary to s 14 of the PPIP Act, the Applicant cannot be said to have sought access to his personal information under the PPIP Act. The Applicant has confirmed in his submissions that he is not seeking access under the PPIP Act.

89. In these circumstances, it cannot be said that the Applicant has made a “request” for “access to the information” under the PPIP Act. Accordingly, s 14 is not invoked and the Tribunal finds that it lacks jurisdiction: see par [61] above.

90. In the event that the Tribunal does have jurisdiction, applying the decision of the Appeal Panel in Davis, the Tribunal finds that the Administrative Review Application is misconceived and lacking in substance. The Review Application is based on an untenable proposition of law and is not reasonably arguable. Allegations of delay and expense incurred in an access application determined under the GIPA Act cannot be considered under s 14 of the PPIP Act.

91. Contrary to the Applicant’s submission, s 20(5) of the PPIP Act allows conditions or limitations to be imported from the GIPA Act into the consideration of an access application under the PPIP Act: see Ritson at [59] and ERC at [29]. It does not incorporate into the GIPA Act provisions of the PPIP Act, in the manner contended by the Applicant. In this case, s 20(5) has no application.

92. The argument of the Applicant that s 73(2) of the GIPA Act can only limit s 14 of the PPIP Act where it is imported “as an expressed condition…to vary s-14 of the PPIP Act” is not relevant to this application under the PPIP Act. In any event, the argument is misconstrued as s 73(2) of the GIPA Act does not relate to the PPIP Act. Rather, it is a provision which allows a condition to be imposed in a GIPA application as to how a right of access may be exercised (such as a condition that prevents an applicant making notes from or taking a copy of a record that is made available for inspection) to avoid there being an overriding public interest against disclosure of the information.

93. For completeness, even if the Tribunal could consider allegations of delay and expense incurred in an access application determined under the GIPA Act under s 14 of the PPIP Act, no expense was in fact incurred by the Applicant as he was not required to travel to Sydney in order to access his personal information. In addition, any delay was attributable to ordinary processing times for applications for internal and external review made by the Applicant and could not be said to be excessive.

94. In relation to whether the outcome would have been any different to the outcome of the decision made under the GIPA Act, if the Applicant had made an access request under s 14 of the PPIP Act, this is a “hypothetical” scenario (Davis 2022) that is not relevant to determining the current proceedings. In any event it is clear that the proceedings “would be of no practical effect”: Appeal Panel in Davis at [53]. Applying the decision of the Court of Appeal in Ritson, there is no need to process an application under s 14 of the PPIP Act in circumstances where the Respondent has already decided a previous application for the information made by the Applicant under the GIPA Act, and there are no reasonable grounds for believing that the Respondent would make a different decision on the application.

95. The Applicant’s other submissions are not relevant to these proceedings. They relate to processing the GIPA Act application:

1. the submission that the Respondent’s change in how access was to be provided to the Applicant, was not accompanied by a statutory notice under s 126(1) of the GIPA Act

2. the submission that the Applicant was portrayed without evidence or cause as a dishonest person who would copy personal CCTV information while reviewing it online

3. the submission referring to s24(1) of the GIPA Act which contends that the Applicant could have avoided potential expense by requesting viewing under the supervision of a local office in his State had he been aware of the access policy at the time of making the GIPA application.

Costs

99. The Respondent has indicated in its submissions in reply that it is considering its position of making an application to seek a costs order against the Applicant under s 60 of the NCAT Act.

100. Under s 60 of the NCAT Act the Tribunal may award costs in relation to proceedings before it but only if satisfied that there are special circumstances warranting an award of costs.

101. Should the Respondent wish to seek costs they must comply with these Orders of the Tribunal.

Conclusion

102. For the reasons set out above the Tribunal finds that the correct and preferable decision is to dismiss the Review Application.

103. The Tribunal does not have jurisdiction to review the application as the Applicant has not made a request for his personal information to enliven s 14 of the PPIP Act or the rights of review in ss 53 and 55 of that Act.

104. In the event that the Tribunal does have jurisdiction, the Review Application is misconceived and lacking in substance (s 55(1)(b) of the NCAT Act). The Review Application is based on an untenable proposition of law and is not reasonably arguable. In addition, the proceedings would be of no practical effect.

105. The Tribunal also decides not to take action in relation to the matter (s 55(2) of the PPIP Act).

Order

1. A hearing is dispensed with under s 50(2) of the NCAT Act.

2. The publication restriction order made 17 March 2025 is revoked under s 64(3) of the NCAT Act.

3. The Review Application is dismissed and the Tribunal will not take any action on the matter.

4. Any Costs Application should be filed by the Respondent within three weeks of the date of this decision.

5. In the event that the Respondent files a Costs Application, the matter is listed for the next available Directions.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 17 September 2025