Wykanak v Director General, Department of Local Government

[2002] NSWADT 208

CITATION:	Wykanak v Director General, Department of Local Government [2002] NSWADT 208
DIVISION:	General Division
PARTIES:	APPLICANT Dominic Wykanak RESPONDENT Director General, Department of Local Government
FILE NUMBER:	023042
HEARING DATES:	23/08/02
SUBMISSIONS CLOSED:	09/20/2002
DATE OF DECISION:	10/22/2002
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Privacy - disclosure of personal information - Privacy & Personal Information Protection Act - disclosure of personal information
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Local Government Act 1993 Privacy & Personal Information Protection Act 1998
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT L Grey, counsel
ORDERS:	1 Application dismissed

1 This decision concerns an application by Mr Wykanak under the Privacy and Personal Information Protection Act 1998 (PPIP Act). Although Director General, Department of Local Government (Director General) did not object to the Tribunal hearing this matter, I have come to the view that the Tribunal has no jurisdiction to do so. The relevant statutory provisions, the parties’ submissions on this point, and my reasoning are set out below.

2 The Privacy Commissioner has a right to appear and be heard in any proceedings before the Tribunal in relation to a review under the PPIP Act. The Privacy Commissioner appeared in this case but did not make any submissions in relation to jurisdiction.

Background

3 The background to this complaint is that Mr Wykanak, who was a councillor of Waverley Council, brought proceedings against the Olympic Co-ordination Authority (OCA) in his personal capacity seeking to prevent the construction of the Olympic Volleyball Stadium at Bondi Beach. On 28 September 1999 Councillor Wykanak and two other councillors put a motion before Waverley Council, which said, in part, that:

. . . noting the recently commenced proceedings by Mr D. WY Kanak v The Olympic Co-Ordination Authority (OCA) and ors in the Supreme Court . . .the Council for the time being rescind its approval and agreement of the Principles of Agreement with the OCA . . . “

4 The Director General investigated this conduct under the Local Government Act 1993 (LGA) because it raised the issue of whether Mr Wykanak had breached the pecuniary interest guidelines. The basis for this concern was that Mr Wykanak may have been liable for costs in the proceedings against the OCA and if the Council rescinded its approval for the construction of the volleyball stadium, he would not be potentially liable for those costs. On 8 March 2000, Windeyer J dismissed Mr Wykanak’s application against the OCA.

5 The question of a possible breach of the pecuniary interest guidelines was referred to the Pecuniary Interest Tribunal (PIT). At a preliminary hearing held at the PIT on 22 October 2001, the PIT indicated that it could be assisted by evidence relating to the quantum of the costs incurred or likely to be incurred by Mr Wykanak in the Supreme Court proceedings. Subsequently the PIT directed the Director General “to supply to Mr Wykanak any documents intended to be sought to be tendered on the question of the quantum of costs involved and any statement of any witness intended to be sought to be tendered in due course on that issue.”

6 On 20 November 2001, Mr Wykanak made a complaint under the PPIP Act to the Director General. The complaint, so far as it relates to the Director General, was as follows:

I complain that the NSW Department of Local Government should not access my personal financial information, especially the quantum of any debts I may owe.

7 Mr Wykanak considered that access to the details of any costs order against him made by the Supreme Court was “a debt I may owe”. In response to the question on the application form, “When did the conduct you are complaining about occur?” Mr Wykanak wrote: “I believe the PIT and the NSWDLG (New South Wales Department of Local Government) conversed about accessing this information on Friday 16 November 2001 and the PIT indicated a request would be raised that day.” (Words in brackets added.)

8 After Mr Wykanak had lodged the application for review of this conduct, officers of the Department obtained four documents (folios 109 to 112 of Ms Leslie’s statement dated 2 July 2002) from the solicitors for the OCA, Clayton Utz. The purpose of obtaining these documents was to comply with the directions of the PIT.

9 The Director General conducted an internal review under s 53 of the PPIP Act and wrote to Mr Wykanak on 22 January 2002. The Director General identified the conduct under review as “the making of a request to the PIT to be provided with information, as part of a matter formally before the Pecuniary Interest Tribunal.” It was that conduct that the Director General reviewed. The Director General concluded that no further action should be taken in relation to the matter and advised Mr Wykanak of his right to apply to the Tribunal for a review of the conduct.

Legislative provisions

The PPIP Act gives the Tribunal jurisdiction to review certain conduct. The relevant procedures are set out in Part 5 of the PPIP Act which includes ss 52, 53, 54, 55 and 56. Conduct that is reviewable by the agency, and subsequently by the Tribunal, is defined in s 52.

(1) This Part applies to the following conduct:

(a) the contravention by a public sector agency of an information protection principle that applies to the agency,
(b) the contravention by a public sector agency of a privacy code of practice that applies to the agency,
(c) the disclosure by a public sector agency of personal information kept in a public register.

(2) A reference in this Part to conduct includes a reference to alleged conduct.

(3) This Part does not apply to any conduct that occurred before the commencement of this Part.

(4) Section 53 (Internal reviews) of the Administrative Decisions Tribunal Act 1997 does not apply to or in respect of conduct to which this Part applies.

Pursuant to s 53 of the PPIP Act, the applicant is entitled to request an internal review of the conduct. Section 53 states that:

(1) A person ( "the applicant" ) who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct.

(2) The review is to be undertaken by the public sector agency concerned.

(3) An application for such a review must:
(a) be in writing, and
(b) be addressed to the public sector agency concerned, and
(c) specify an address in Australia to which a notice under subsection (8) may be sent, and
(d) be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application, and
(e) comply with such other requirements as may be prescribed by the regulations.

(4) Except as provided by section 54 (3), the application must be dealt with by an individual within the public sector agency who is directed by the agency to deal with the application. That individual must be, as far as is practicable, a person:

(a) who was not substantially involved in any matter relating to the conduct the subject of the application, and
(b) who is an employee or officer of the agency, and
(c) who is otherwise suitably qualified to deal with the matters raised by the application.

(5) In reviewing the conduct the subject of the application, the individual dealing with the application must consider any relevant material submitted by:

(a) the applicant, and
(b) the Privacy Commissioner.

(6) The review must be completed as soon as is reasonably practicable in the circumstances. However, if the review is not completed within 60 days from the day on which the application was received, the applicant is entitled to make an application under section 55 to the Tribunal for a review of the conduct concerned.

(7) Following the completion of the review, the public sector agency whose conduct was the subject of the application may do any one or more of the following:

(a) take no further action on the matter,
(b) make a formal apology to the applicant,
(c) take such remedial action as it thinks appropriate (eg the payment of monetary compensation to the applicant),
(d) provide undertakings that the conduct will not occur again,
(e) implement administrative measures to ensure that the conduct will not occur again.

(8) As soon as practicable (or in any event within 14 days) after the completion of the review, the public sector agency must notify the applicant in writing of:

(a) the findings of the review (and the reasons for those findings), and
(b) the action proposed to be taken by the agency (and the reasons for taking that action), and
(c) the right of the person to have those findings, and the agency's proposed action, reviewed by the Tribunal.

10 Pursuant to s 55 of the PPIP Act, the applicant may apply to the Tribunal for review of the conduct if the applicant is not satisfied with the internal review. Section 55 states that:

(1) 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.

(2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders:

(a) subject to subsection (3), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct,
(b) an order requiring the public sector agency to restrain from any conduct or action in contravention of an information protection principle or a privacy code of practice,
(c) an order requiring the performance of an information protection principle or a privacy code of practice,
(d) an order requiring personal information that has been disclosed to be corrected by the public sector agency,
(e) an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant,
(f) an order requiring the public sector agency not to disclose personal information contained in a public register,
(g) such ancillary orders as the Tribunal thinks appropriate.

(3) Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997.

(4) The Tribunal may make an order under subsection (2) (a) only if:

(a) the application relates to conduct that occurs after the end of the 12 month period following the date on which Division 1 of Part 2 commences, and
(b) the Tribunal is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency.

(5) If, in the course of a review under this section, the Tribunal is of the opinion that the chief executive officer or an employee of the public sector agency concerned has failed to exercise in good faith a function conferred or imposed on the officer or employee by or under this Act (including by or under a privacy code of practice), the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister (if any) for the public sector agency.

(6) The Privacy Commissioner is to be notified by the Tribunal of any application made to it under this section.

(7) The Privacy Commissioner has a right to appear and be heard in any proceedings before the Tribunal in relation to a review under this section.

11 Two issues arise in these proceedings. The first is whether the conduct identified by Mr Wykanak in his application of 20 November 2001 is conduct covered by s 52 of the PPIP Act. If it is not, then the Tribunal has no jurisdiction to review that conduct.

12 The second question is whether the Tribunal has jurisdiction to review conduct about which Mr Wykanak did not complain in his application to the Director General dated of 20 November 2001, but which occurred subsequently. That conduct was obtaining the four disputed documents from Clayton Utz, solicitors. That conduct occurred before the Director General carried out an internal review of the conduct.

Applicant’s submission

13 Mr Wykanak submitted that the Tribunal has jurisdiction to entertain his application under s 55 of the PPIP Act on the basis that the conduct sought to be reviewed was the intention of the Director General to access his private financial debt information. Secondly, Mr Wykanak submitted that his application for review should be interpreted to cover the course of conduct taken by the Director General, that is the obtaining of information concerning the applicant from Clayton Utz, solicitors.

14 Thirdly, Mr Wykanak submitted that the Director General did nothing to offer him a fair opportunity to be heard on his objections and that doing nothing is conduct reviewable by the Tribunal under the PPIP Act.

15 Finally, Mr Wykanak submitted that the internal review was not completed within the 60 days required under s 53(6) PPIP Act. Consequently, he is entitled to make an application under s 55 to the Tribunal for a review of the conduct concerned.

Agency’s submissions

The Director General expressed the view that despite the fact that it did not seek to have the application dismissed for want of jurisdiction, there is considerable doubt about whether the Tribunal has jurisdiction to entertain Mr Wykanak’s application.

Decision and reasons

16 The conduct about which Mr Wykanak made his application to the Director General was that his personal financial information should not be accessed, especially the quantum of any debts he may owe.

17 The conduct Mr Wykanak complained of was conduct which he assumed may occur in the future. The plain meaning of s 52 is that the conduct must have occurred at the time of the application. Possible future conduct is not covered. There is no reference to an intention to commit future acts. Consequently, the conduct about which Mr Wykanak complained is not covered by any of the matters listed in s 52 of the PPIP Act and the Tribunal does not have jurisdiction to review it.

18 Mr Wykanak identified the Director General’s conduct in obtaining four documents relating to him from Clayton Utz, solicitors as part of a course of conduct which should be reviewed by the Tribunal. That conduct occurred after the date he lodged his application with the Director General and before the internal review was conducted. The provisions set out above make it clear that the conduct referred to in Part 5 of the PPIP Act, is the conduct complained of, not conduct which occurred subsequently. The Director General did not review that conduct. Whether or not he did so is irrelevant because, neither he, nor the Tribunal, had power to do so.

19 Any failure to afford Mr Wykanak procedural fairness does not come within the terms of s 52 of the PPIP Act.

20 Even though, pursuant to s 53(6) of the PPIP Act, failure to complete the internal review within the required period allows a person to apply to the Tribunal, that does not mean that the Tribunal has jurisdiction to entertain that application. There is a fundamental obstacle to the Tribunal having jurisdiction to hear Mr Wykanak’s application. That obstacle is that neither the conduct about which Mr Wykanak complained, nor the conduct that he requested the Tribunal to review, comes within the definition of reviewable conduct in s 52 of the PPIP Act. Because that definition applies to the whole of Part 5 of the PPIP Act, including reviews by the Tribunal under s 55, the Tribunal has no jurisdiction to entertain Mr Wykanak’s application.

Costs

21 The Director General requested that the Tribunal order that Mr Wykanak pay its costs. The Director General submitted that Mr Wykanak is familiar with the legal process yet he has continued to bring actions which lack merit and possibly lack jurisdiction. In those circumstances he should be required to accept the financial responsibility for doing so.

22 Section 88 of the ADT Act sets out the rule to be applied in relation to costs:

(1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs .

(2) The Tribunal may:

(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on any other basis.

(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.

(4) In this section, "costs" includes:

(a) costs of or incidental to proceedings in the Tribunal, and
(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application. (Emphasis added.)

23 In this case, the applicant is not legally qualified. He could not be expected to know that the Tribunal does not have jurisdiction to hear his application. While there are no special circumstances justifying an award of costs in this case, if Mr Wykanak intends to make any further applications, he should do so after fully considering the implications of this decision.