AQG v Secretary, Department of Customer Service

Tribunal proceedings

1. On 29 September 2020, the Tribunal held a case conference in this matter. At the case conference, the Tribunal made an order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) prohibiting the publication or broadcast of the applicant's name. This is an order frequently made in privacy proceedings to protect applicants' privacy. The Tribunal also ordered the applicant to file and serve a document identifying all alterations that he requested be made to his personal information.
2. On 12 October 2020, the applicant provided the Tribunal and the respondent with a document identifying five "elements." This document purported to comply with the order requiring the applicant to identify the amendments he sought to his personal information.
3. The first "element" raised issues including the respondent's use of the wrong address for the applicant. In relation to the second and third elements, the applicant sought that "every scintilla of information relating to the" penalty and subsequent enforcement order "is to be completely expunged from my driving record and all data backup storage retrieval systems." The applicant also made some complaints about the internal review, as part of the fourth element, and sought to have the internal review report "removed in its entirety and deleted from all data storage and retrieval systems." In relation to the fifth element, the applicant claimed that Mr Pilbeam had wrongly stated, in his letter of 4 July 2020, that the applicant had made an oral request for access to information spanning a period of twelve years. He indicated that his application of 5 March 2020 had made it clear that the application was only in relation to a particular penalty. He requested that anything in Mr Pilbeam's letter referencing any matter before 13 June 2019 be redacted from the document.
4. The respondent applied for the summary dismissal of the applicant's application, claiming that the Tribunal does not have jurisdiction to determine it. The parties were directed to file evidence and submissions in relation to both the summary dismissal application, and the substantive issues in the matter, and did so.
5. The respondent relied upon a statement of Andrew Pilbeam, dated 27 January 2021. The respondent also filed a bundle of materials containing documents which included correspondence between the parties, the applicant's application for internal review and the internal review report.
6. In its written submissions, the respondent submitted that the applicant's application should be dismissed under s 55(1)(b) of the NCAT Act for any one of the following reasons: 1. The proceedings have not been brought in relation to an internal review, as is required under s 55 of the PPIP Act; 2. Even if the application for administrative review is construed as relating to the conduct the subject of the internal review: 1. the issues in the administrative review before the Tribunal have exceeded the scope of the internal review, contrary to s 55 of the PPIP Act; 2. the application has been brought out of time and no application brought nor grounds exist for the Tribunal to grant an extension of time under s 41 of the NCAT Act.
7. The applicant, in his written submissions, resisted the summary dismissal application. He described it as an "attempt to extinguish my statutory rights" under the PPIP Act which was "completely inappropriate as well as not being in the public interest, nor is it compliant with the NSW Dept of Justice Model Litigant Policy." He provided the Tribunal with a copy of that policy. He submitted that the summary dismissal application "has no merit and should be dismissed or struck out."
8. In his written submissions, the applicant sought the following orders: 1. "In accordance with provisions of s 15(1) & 15(4) of the PPIP Act The respondent is to delete all references to the applicant or any information linking the applicant to Penalty Notice [number] or Enforcement order [number] from its information holdings, records & databases under the Respondent's control. 2. The respondent is to remove all reference to the incorrect address of [address] pertaining to the applicant & insert the correct address of [address] into all records held by or under the control of the respondent. 3. Respondent is to provide the applicant with a sworn statement that both orders have been completed and that no residual unaltered records remain in any information holdings, records & databases under the Respondent's control. 4. Respondent is to provide the applicant with a copy of the amended records after completion of order 1."

Aborted hearing

1. The matter was listed for hearing before me on 20 April 2021 by telephone. I telephoned the parties but, due to technical issues affecting the applicant's telephone line which caused it to drop out periodically, it soon became apparent that the hearing could not proceed effectively that day by telephone.
2. The parties consented to the determination of the summary dismissal application on the papers. I am satisfied that the issues for determination on the summary dismissal application 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 NCAT Act, s 50(2)). Accordingly, I have made an order dispensing with a hearing of the summary dismissal application.
3. Summonses to two of the respondent's employees were issued at the applicant's request, requiring them to attend the hearing and to give evidence. The respondent applied to have those summonses set aside. I formed the view that the summonses related to the substantive issues in the proceedings, and not to the legal issues raised by the summary dismissal application. Accordingly, it was not necessary to deal with the application to set aside the summonses before determining the summary dismissal application.

Respondent's summary dismissal application

1. Section 55(1)(b) of the NCAT Act relevantly 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." The term "misconceived" connotes "a misunderstanding of legal principle" and would represent a claim which did not disclose a cause of action (Alchin v Rail Corporation NSW [2012] NSWADT 142 at [25]; EJE v Service NSW and Commissioner for Fair Trading [2021] NSWCATAD 62 at [22]).
2. The first basis on which the respondent seeks summary dismissal of the applicant's application to the Tribunal is that the proceedings have not been brought in relation to an internal review, contrary to s 55 of the PPIP Act. The second is that the subject of the application before the Tribunal goes beyond the scope of the internal review of 26 May 2020.

Has the applicant applied for internal review of the respondent's conduct?

1. Part 5 of the PPIP Act (comprising ss 52-55) applies to certain conduct including the contravention or alleged contravention by a public sector agency of an information protection principle that applies to the agency (PPIP Act, s 52(1)(a), (2)).
2. Section 53(1) of the PPIP Act provides that a person who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct. The agency concerned is to conduct the review (PPIP Act, s 53(2)). For that reason, the review is known as an "internal review." There are some requirements in respect of the making of an internal review application, including that it be in writing (PPIP Act, s 53(3)). The agency may take certain action following the internal review, or decide to take no action (PPIP Act, s 53(7)).
3. Section 55 of the PPIP Act provides: "55 Administrative review of conduct by Tribunal (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 Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct that was the subject of the application under section 53."
4. Only "a person who has made an application for internal review" may make an application to the Tribunal under s 55(1), and that application is limited to an application for "review of the conduct that was the subject of the application under section 53." As the Appeal Panel of the Administrative Decisions Tribunal observed in KO and KP v Commissioner of Police, New South Wales Police [2005] NSWADTAP 56 at [13], "[i]t is plain from the scheme of the Act that the Parliament intended that the agency have the first opportunity, always, to deal with the matters of complaint."
5. The respondent submits that the decision of 4 July 2020, which it says that the applicant seeks to have reviewed, was not an internal review under s 53 of the PPIP Act, but rather an outcome of the Department's consideration of the applicant's request for access to information under s 14 of the PPIP Act.
6. As indicated above, the applicant identified the "decision" of which he sought review on his Tribunal application form as being a decision of the respondent made on 4 July 2020. The administrative review application form requires the applicant to attach a copy of the decision to be reviewed and to identify the date on which the applicant was notified of the decision. The form is not well adapted to the review of "conduct" with which the PPIP Act is concerned. Such conduct might include an alleged disclosure of personal information by an agency contrary to s 18 of the PPIP Act, an alleged use of personal information contrary to s 16 or 17 of the PPIP Act, or an alleged failure to make appropriate amendments to personal information, contrary to s 15 of the PPIP Act. A review conducted by the Tribunal under the PPIP Act is not a review of a "decision" in the usual sense.
7. The Tribunal's administrative review application form has contributed to the difficulty in identifying the conduct of which the applicant sought review, because it did not ask the applicant to identify that conduct. Whilst an applicant in privacy proceedings would generally attach an internal review decision to the application, that was not done here. In cases where an internal review was not conducted, despite an application for internal review being made, there would be no "decision" to attach.
8. Mr Pilbeam's letter of 4 July 2020, which was attached to the applicant's application to the Tribunal, communicated a decision, purportedly made in accordance with s 14 of the PPIP Act, to provide access to personal information. Section 14 provides: "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."
9. The applicant's request for this personal information was, according to the decision, made verbally (over the telephone) on 3 June 2020. The applicant disputes that he made a request in the broad terms referred to in Mr Pilbeam's letter. Irrespective of that, having regard to the entirety of the information before me, it does not appear to me that the applicant is seeking review of the decision of 3 June 2020 to provide him with access to information. That issue is not raised in his submissions. The orders he sought all related to the amendment or deletion of his personal information.
10. The applicant has not clearly articulated the conduct of which he seeks review on the administrative review application form. The evidence suggests (and the respondent acknowledges) that there was some misunderstanding about the applicant's request to which the 4 July 2020 letter responds. On the Tribunal's administrative review application form, the applicant stated that he was aggrieved by both the original decision and the review. That suggests that he was aggrieved by the internal review decision (which, possibly he regarded as the "original decision," the 4 July 2020 decision being, in his mind, a "review").
11. There is some continuity with what the applicant states that he is seeking from the Tribunal's review and what he sought in his internal review application. In his submissions to the Tribunal dated 26 February 2021, the applicant stated: "My privacy request is merely to have records corrected that are not accurate, up to date, or are misleading. …"
12. The submissions proceed to complain about Revenue NSW's actions in relation to the Penalty Notice and the applicant's consequent inability to "prove [his] innocence in court."
13. In relation to the respondent's submissions in [51] that the applicant nominated the decision of 4 July 2020 as the decision under review, and that this was distinct from the internal review of 26 May 2020, the applicant submitted: "Item 51 is a total fabrication on the part of a dishonest crown solicitor the application made it crystal clear that I was aggrieved with the initial and the final decision neither of which addressed the issues in the application the final decision was attached to the Application before the Tribunal for the time limit test."
14. That submission tends to suggest that the applicant was seeking review of an earlier decision, but that he annexed the decision of 4 July 2020 so that his application would not be out of time. The decision he describes as the "initial decision" appears to be the internal review decision and the "final decision" appears to be the decision of 4 July 2020.
15. Presumably for the purpose of clarifying the conduct the subject of the review, and the orders the applicant sought, the Tribunal directed the applicant to identify all alterations that he requested be made to his personal information. The applicant provided the 4 October 2020 document in response to those orders.
16. Given the uncertainties created by the wording in the administrative review application form, and the lack of clarity in the applicant's identification of grounds on that form, the applicant's document of 12 October 2020 provides a useful guide to identifying the conduct of which he is seeking review. I have therefore considered whether the conduct described in each of the "Elements" set out in that document was the subject of an internal review application.
17. Element 1 of the 12 October 2020 document is that the respondent created and used an incorrect address for the applicant in correspondence, resulting in the disclosure of his personal information to persons at the incorrect address. He stated that he wanted the incorrect address to be expunged from the respondent's records.
18. In his application for internal review, the applicant refers to Revenue NSW receiving false and misleading information from RMS in respect of the penalty, but there is no mention of it using an incorrect address. The applicant ticked the boxes on the internal review form indicating that his complaint was about accuracy and use of his personal information (amongst other things), but he described his complaint as being about proceeding with a penalty based on false information. I have reviewed the emails between the Department and the applicant following the making of the internal review application and they do not disclose any complaint about using an incorrect address.
19. Accordingly, I find that the complaint described in Element One was not the subject of an application for internal review, and the Tribunal does not have jurisdiction to review it.
20. Element 2 of the 12 October 2020 document is that the penalty was incorrectly attributed to the applicant. The applicant stated that he wanted information relating to the penalty and the subsequent enforcement order expunged from the respondent's records.
21. I am satisfied that the conduct as described in Element 2 was conduct referred to on the applicant's "privacy internal review complaint form" which the respondent treated as an internal review application. That application alleged in that application that the penalty was "based on demonstrable false information" and sought corrections to the information identified as "false." In my view, Element 2 alleged a contravention of s 15(1) of the PPIP Act (failure to make appropriate amendments including deletions to ensure the personal information is accurate). I will return to Element 2 below.
22. Element 3 does not identify any conduct. Under Element 3, the applicant seeks an order expunging the penalty from the applicant's driving record.
23. Element 4 is a request for the deletion of the internal review report and Element 5 requests redactions to the letter of 4 July 2020. Elements 4 and 5 may be characterised as requests made under s 15 of the PPIP Act for the amendment of the applicant's personal information. Section 15(1) provides: 15 Alteration of personal information (1) A public sector agency that holds personal information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the personal information - (a) is accurate, and (b) having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading.
24. There is no evidence that the applicant has previously requested the respondent to delete the internal review report or to redact the letter of 4 July 2020 and it follows that there has been no application for internal review of any refusal or failure of the respondent to do so. Accordingly, insofar as the application to the Tribunal seeks review of the conduct as identified in Elements 4 and 5, the Tribunal does not have jurisdiction to review it, as it was not the subject of an internal review application.
25. For these reasons, I find that the Tribunal has no jurisdiction to review the conduct identified in Elements One, Four and Five of the 12 October 2020 document and that Element Three does not identify any conduct.

Element Two

1. In relation to Element Two, there is a question as to whether the "privacy internal review complaint form" was, in fact, an application for internal review insofar as it referred to the amendment of personal information, or whether it was the first request the applicant had made for amendment of his personal information.
2. The making of an application for internal review of "conduct" (which includes an agency's alleged contravention of an information protection principle) is a condition precedent for applying to the Tribunal (PPIP Act, s 52(1)(a), (2), 53(1), 55(1)). Where an applicant seeks amendment of his or her personal information under s 15(1) of the PPIP Act, he or she must first request the agency to make appropriate amendments and then, if the agency fails or refuses to do so, apply for an internal review of that conduct. The initial request to amend personal information is not itself an application for review of "conduct" (that is, an application for internal review) because there can be no contravention of s 15(1) of the PPIP Act until a request for amendment has been made and the agency has refused or failed to comply with the request.
3. The internal review decision did not find that the applicant had not made an earlier request for amendment. The internal review officer concluded that there was "no breach of the Amendment or Correction principle," reasoning that the "IPP 8 application for amendment of information was motivated by the desire to overturn or set aside the" penalty notice and that this was an "abuse of process." The internal review officer has regard to "the history, conduct of Revenue NSW, request for various internal reviews, GIPA request, Ministers representations, and this privacy internal review request" into account, finding that the internal review request was "another step or attempt to have the [penalty notice] primary conclusions overturned."
4. This raises the possibility that the applicant had made a previous request for amendment in the various documents to which the internal review officer referred. However, no specific request for amendment, prior to the "privacy internal review complaint form" has been identified by either party. The applicant stated on his "privacy internal review complaint form" that he wanted the respondent to "process corrections to the information I identify as false, misleading & inaccurate by way of appending the attachments that I provide" and then to provide him with a corrected document. It does not appear, from the documents before the Tribunal, that the applicant attached any documents to his application form. That suggests he had not yet identified any specific information as being false and had not yet requested amendment of that specific information. For these reasons, I find that the applicant had not made any previous request for amendment of his personal information when he completed the privacy internal review application form.
5. I note, for completeness, that the respondent submitted, in support of its summary dismissal application, that the privacy internal review form did not sufficiently identify the amendments the applicant wanted made to his personal information. It relied upon WH v Internal Audit Bureau of NSW [2011] NSWADT 237, in which the Tribunal found that the internal review application did not identify any amendments which the applicant had allegedly requested. The applicant in that case had claimed that the agency had breached the amendment principle as a particular document contained "a large number of incorrect personal statements relating to myself." There was no further specification of the personal information to which the amendment request related.
6. The respondent also relied upon AA v Department of Family and Community Services [2016] NSWSC 842, where Slattery J observed, of s 15 of the PPIP Act, at [195]: PPIP Act provides a very useful procedure. It sets up a process in which a complainant about the content of public sector agency information is required to draft an amendment to the information on file, so that the agency will be in a position to consider the precise changes the complainant wants to what is recorded. This is a simple and useful measure to make sure that the differences between the complainant and the relevant government agency are adequately defined at the outset. And even before that point is reached, the Department has to be asked in a non-adversarial atmosphere whether it accepts the amendments being proposed or declines them. One of the difficulties of the present case is that before the plaintiffs sought the relief that they now do about changing the content of the Department's files they did not go through the kind of discipline that PPIP Act, s 15 requires.
7. The respondent relied upon this passage in support of its submission that a request for amendment under s 15 of the PPIP Act "should be specific and clear."
8. I find that the applicant has not made a sufficiently specific request for the amendment of personal information for there to have been a "request" under s 15(1) for the amendment of his personal information. If I am wrong about this, and the privacy internal review complaint form constituted the making of such a request, then the applicant has not sought internal review of the respondent's failure or refusal to make the requested amendments (by way of deletion). For these reasons, the Tribunal does not have jurisdiction to review the conduct identified in Element Two.
9. The applicant identified, in submissions to the Tribunal, the "scope of [his] application" as being his "personal records under PIPPA." In light of this, and the orders he seeks for amendment of his personal information, I find that the application to the Tribunal did not seek review of any of the other conduct referred to in the internal review application, such as alleged use and disclosure of personal information.

Conclusion

1. The Tribunal does not have jurisdiction to review any of the conduct the subject of the applicant's application to the Tribunal, for the reasons given above. Accordingly, I find that the proceedings are misconceived and that they should be dismissed under s 55(1)(b) of the NCAT Act.

Orders

1. I make the following orders: 1. A hearing of the respondent's summary dismissal application is dispensed with. 2. The proceedings are dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW).

I hereby certify that this is a true and accurate record of the reasons for Decision of the New South Wales Civil and Administrative Tribunal. Registrar 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 June 2021