EJE v Registrar of Births Deaths and Marriages

NCAT Administrative and Equal Opportunity|2021-04-13

Introduction

These reasons concern the Tribunal's review of a complaint made by an individual, known for the purposes of this proceeding as EJE, against the Registrar of Births, Deaths and Marriages (BDM), concerning an alleged breach of the privacy principles contained in the Privacy and Personal Information Protection Act 1998 (NSW) (the PPIP Act). In order to protect that individual's privacy, her name and other information which may cause that individuals identity to be disclosed or easily discovered, is not discussed in these reasons.
As is usual in such proceedings. I have also made an order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) prohibiting the disclosure of the applicant's real name.

Background

On 1 July 2020 EJE and her partner filed an application for administrative review with the Tribunal. The application sought a review of conduct by BDM under the Privacy and Personal Information Protection Act 1998 (the PIPP Act). In the application EJE had marked the box indicating that the decision was lodged within the time allowed.
The conduct in issue had been the subject of an internal review by BDM. The copy internal review decision which EJE attached to her application had been redacted, by deleting the name of the Registrar who signed it, the date it was signed, and the registrar's signature. An examination of an unredacted copy shows that the internal review was signed by the Registrar on 19 March 2020. The copy provided by EJE with her administrative review application shows all the hallmarks of being obtained under the Government Information (Public Access) Act 2009. The entire signature block, including the date, has been redacted. Why the date was redacted is difficult to understand.

Progress within the Tribunal.

EJE's administrative review application was first listed for case conference on 4 August 2020. In orders that made that day the Tribunal: 1. removed her partner as a party to the application; 2. remitted the internal review decision for reconsideration by BDM before 1 September 2020; and 3. listed the matter for further case conference on 15 September 2020.
On 28 August 2020, BDM wrote to EJE responding to various matters she had raised at the case conference with respect to her and her children's birth certificates, or other official records. BDM also asked EJE to advise whether was she wished to proceed with her administrative review application. There was no reconsideration issued.
None of the matters dealt with in BDM's letter, on their face, appear to relate to the conduct complained of by EJE in her privacy complaint. The conduct she complained of in that complaint was, "use of my personal information and misconduct in relation to records held in my name". She said she had first become aware of this conduct - When I receive documentation off CSU showing my identity is being used fraudulently by BDM. I have never been married and had only one to facto partner, [name] who lives with me currently and is the father of our 4 children and [he] has never been married.
At the case conference held on 15 September 2020 the Tribunal made directions: 1. with respect to a number of matters raised at that hearing; 2. requiring EJE to advise the Tribunal and BDM by 2 October 2020 whether she was proceeding with or withdrawing her administrative review application; and, 3. listing the matter for further hearing on 15 September 2020.
BDM responded to the issues raised by EJE in a letter dated 28 September 2020. Investigating and responding to the matters raised by EJE at the 15 September 2020 case conference appears to have been an indulgence on the part of BDM and the Tribunal. They do not obviously relate to the conduct complained of in the internal review complaint.
On 5 October 2020 EJE responded to that letter by email, requesting verification of certain matters and demanding certain amendments to her birth certificate. Again, these matters on their face do not relate to the conduct complained of in the internal review complaint. BDM responded in a letter dated 7 October 2020.
A further case conference was held on 13 October 2020. The Tribunal then ordered that: 1. EJE give BDM, "a statement listing the conduct which she asserts is a breach of the Privacy and Personal (sic) Protection Act 1998 that was the subject of her request for internal review, and the remedies she is seeking by 27 October 2020. The following note appears to that order - … the Tribunal notes that the applicant has received the respondent's letters of 28 September 2020 and 7 October 2020, and the above direction is intended to enable clarification is what to issues remain for the Tribunal to determine. 1. BDM file section 58 documents and any application for summary dismissal of the proceedings by 17 November 2020. 2. The application be listed for directions on 24 November 2020.
On 21 October 2020 EJE emailed both the Tribunal and BDM responding to the members directions. In summary she: 1. demanded the return of materials she had provided to BDM when she changed her name in 2016; 2. asked why her green birth certificate had been returned to her when she changed her name; 3. wanted confirmation that her current and former births certificates, which she sought amendments to, were forwarded from a specific Service NSW Office to BDM on 11 May to 2020; and, 4. explaining that she had never used a middle name that contains one letter different to a name she does use.
On 23 October 2020 EJE sent an email containing the same requests - word for word - to the Tribunal and to BDM.
EJE has not provided a statement listing the conduct she complained of, or the remedy she wants, as ordered by the Tribunal on 13 October 2020.
Similarly, BDM did not file s 58 documents or an application for summary dismissal as directed by 17 November 2020.
At a directions hearing held on 24 November 2020 the Tribunal ordered, in summary: 1. BDM to file and serve all materials and submissions by 4 December 2020; 2. EJE to file and serve materials and submissions by 15 January 2020; 3. that the matter would then be decided without the need for the parties to be present; and, 4. the Tribunal noted that the issues for determination of a limited the questions of: 1. whether the respondent has disclosed the applicant's personal information in breach of the privacy and personal information protection act 1998; and, 2. whether the decision to refuse to make amendments to the applicant certificates is the correct and preferable decision.
EJE's application for administrative review has been referred to me to determine on the papers.
Section 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) says that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before BDM but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

Additional issue

When I received and began to consider the papers in this matter, I noticed that various references, within the material submitted by the parties, indicated that the internal review decision had been completed on 18 March 2020. For instance, in an email to BDM's legal representative (copied to the Tribunal) and dated 29 October 2020 EJE wrote: I also addressed the policies of BDM with the information and privacy Commissioner and in their response finalised on 18/3/2020 reference number- BDM- 04838 the IPC studied the registry has practices in place and procedures to ensure personal details are protected.
The reference number BDM - 04883 is the reference number that appears on the internal review decision.
If it was the case that EJE had been provided with the internal review around 18 March 2020, there was an issue as to whether the administrative review application had been made within time.
On 5 February 2021, the Registry of the Tribunal, at my request, wrote to the parties as follows: This matter is an administrative review of conduct under the Privacy and Personal Information Protection Act 1988. It has been allocated to Senior Member Molony to determine the following issues on the papers without a hearing: • whether the respondent has disclosed the applicant's personal information in breach of the Privacy and Personal Information Protection Act 1988; and • whether the decision to refuse to make amendments to the applicant certificates is the correct and preferable decision. When considering the application Mr Molony must be satisfied the Tribunal has jurisdiction to conduct the review. He is concerned that the application for administrative review was made too late and may be out of time. He notes that: • the application for administrative review was filed on 1 July 2020; • it relates to an internal review that appears to have been finalised on 18 March 2020, although the copy letter supplied by the applicant advising of the internal review outcome is undated; and, • the internal review relates to a privacy complaint dated 17 January 2020. Before Mr Molony can proceed to determine the matter, he must be satisfied that the application was made within time, or than an extension of time has been granted, and that the Tribunal has jurisdiction. The time set for the making of an application for administrative review of a decision under the Privacy and Personal Information Protection Act 1988 is, assuming the internal review was completed within 60 days of the privacy complaint, 28 days after the completion of the internal review: see generally rule 24(4)(a1) of the Civil and Administrative Tribunal Rules 2014. On the evidence presently before him Mr Molony thinks there is an issue as to whether the application was made in time. He has made the following directions to enable the parties to state their position on the issue: 1. The applicant is to file and serve any submissions and materials relating to the issue of whether or not the application was made within time, including any application and submissions seeking an extension of time, by 19 February 2020. 2. The respondent is to file and serve any submissions and materials in reply by 5 March 2020. 3. Submissions should address if the Tribunal can determine whether the application was made within time, without a hearing, and on the materials filed by the parties.
I was not aware of either party filing submissions in response.
I was reluctant to progress the matter any further without clarifying the issue of whether the application had been made in time. The materials submitted by the parties thus far simply did not allow me to be satisfied that the application had been made in time and that the Tribunal had jurisdiction to hear it. Indeed, they raised the real prospect that the application was out of time.
On 10 March 2020, the Registry of the Tribunal, at my request, advised the parties of the following directions made in chambers: The Tribunal notes that: 1. neither party has filed submissions in response to the Tribunal's call for submissions on the issue of whether EJE's application for administrative review was made within time; and, 2. the Registrar of Births, Deaths and Marriages has failed to comply with the Tribunal's order of 13 October 2020 that it file documents under section 58 of the Administrative Decisions Review Act 1997. In accordance with the Tribunal's powers under section 38 of the Civil and Administrative Tribunal Act 2013 to determine its own procedure and to inform itself as it thinks fit, Senior Member Molony has made the following orders in chambers. They are intended to provide the Tribunal with a complete, dated copy of the internal review decision, and with details of how and when it was served on EJE. Orders/Directions 1. By 16 March 2021, the Registrar of Births, Deaths and Marriages shall file with the Tribunal and serve on EJE: a. a copy of the internal review decision in this matter; b. an affidavit or statutory declaration: i. verifying the copy of the internal review decision given to EJE, including its date; ii. providing evidence as to how and when the internal review decision was given to EJE, including copies of any covering emails or letters; and, c. any submissions the Registrar of Births, Deaths and Marriages wishes to make with respect to those documents. 2. By 25 March 2021, EJE shall file with the Tribunal and serve on the Registrar of Births, Deaths and Marriages any submission she wishes to make with respect to the material served on her pursuant to order 1.
BDM filed materials and submission responsive to that order on 15 March 2021.
EJE filed submissions and supporting documents on 25 March 2020.

Material considered by the Tribunal.

In considering this matter I have had regard to the following material. 1. From EJE: 1. Emails from EJE to the Tribunal dated 23 September 2020 at 1:03 PM and 12:54 PM. 2. Email from EJE to the Tribunal dated 21 October 2020. 3. Email from EJE to the Tribunal dated 23 October 2020. 4. Emails from EJE to BDM's legal representative dated 29 October 2020 at 5:14 PM and 5:32 PM, copied to the Tribunal. 5. Email from EJE dated 2 November 2020 attaching copy IPC complaint, 6. Email from EJE dated 5 November 2020 attaching copy tenancy agreement. 7. Email from EJE dated 24 December 2020 with attachments. 8. Response to BDM's submission received 24 December 2020 with attachments numbered 1 to 33. 9. Large manila folder marked Births, Deaths and Marriages full of documents in plastic sleeves. 10. Four page submission from EJE, partly typed and partly handwritten, accompanied by 14 separate bundles of documents numbered 1 to 14, filed on 25 March 2020. 1. From BDM: 1. Undated Submissions filed on behalf of BDM on 11 January 2021 with attachments. 2. Email dated 29 October 2020 attaching letter to EJE from BDM's legal representative dated on that day. 3. Letters from BDM's legal representatives dated 7 October 2020, 28 September 2020, and 28 August 2020 (with attachments). 4. Affidavit of Nicole Sergent affirmed 15 March 2021 with attachments. 5. DMMs submissions dated 15 March 2021 with attachments.

Should the application be determined without a hearing?

Section 50 (2) to (4) of the NCAT Act provide: (2) The Tribunal may make an order dispensing with a hearing 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. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.
In this case both parties have been given the opportunity to comment and make submissions as to whether the Tribunal should determine without a hearing: 1. the questions nominated by the Tribunal on 17 November 2020; and 2. whether the application was made within time.
BDM has agreed to the matter being determined on the papers, without a hearing.
EJE who has made written submissions and filed numerous documents, has not responded to requests that she indicate her attitude to the issues being determined on the papers, including the out of time issue.
Having reviewed all the materials I am satisfied that those matters can be determined in the absence of the parties by considering the materials lodged by the parties. I therefore dispense with a hearing.

Material provided by BDM concerning the out of time issue.

BDM has provided an affidavit of Nicole Sergent in which she says that a signed copy of the internal review decision was sent to EJE by email. It was timed 19 March 2020 at 4:39 PM. The email address to which the email was sent is not the same email address as that which EJE gave in her privacy complaint.
Also annexed to the affidavit is a copy of an email from EJE, at the email address to which the internal review was sent, timed 19 March 2020 at 4:47 PM, eight minutes after the internal review decision was sent. In it EJE said, among other things that: This is not my complaint you have referred to. I did not make any complaint about Charles Sturt University. My complaint was about the practices at bdm and as to date I have not put in any amendment request on m [name] or my children's birth certificates. This is proof that I have identity theft occurring. …
That email from EJE formed part of a chain which commenced with the email sending her the internal review decision eight minutes earlier.
BDM submitted that EJE was served with the internal review decision on 19 March 2020 and made her application for administrative review on 1 July 2020, well outside the 28 day window for the making of such an application.
BDM opposed EJE being granted an extension of time.

Material and submissions provided by EJE with respect to the out of time issue.

EJE's response to my call for evidence and submissions of 10 March 2021 is dated 22 March 2021. It consisted of four pages of submissions, both typed and handwritten, and 14 separate bundles of documents.
EJE's says that she did respond to my initial call for submissions on the out of time issue. She says that she provided the Tribunal with the materials in Tab 13 in response to that request. This consists of an email from EJE, dated 15 February 2021, containing, "a response for member Molony". Attached was an email from EJE to BDM's legal representative, copied to the Tribunal, dated 24 December 2020. Omitting the formal parts this said: In response to BDM stating I did not provide information in regard to how privacy was breached by BDM I did raise this at 1st tribunal hearing when I raised the fact that BDM admitted to recording information incorrectly at the time I registered my 4 children's births.
This response did not make its way to me. That may be because it looks like ordinary correspondence, as opposed to a submission. It also did not elicit a response from BDM, who say they received no submissions from EJE in response to my first call for submissions. In any case, whether received or not, EJE did not address the out of time issue at all.
In her submissions, received on 25 March 2021, EJE also referred to a series of requests and other interactions she has had with BDM, after EJE made the privacy complaint, which it will be remembered was received by BDM on 21 January 2020. These include: 1. "False facts" being recorded by a staff member on 24 February 2020. 2. Her attendance to request amendments to birth certificates at a Service NSW office on 11 and 12 May 2020. 3. EJE addressing policies of Births, Deaths and Marriages with the Information and Privacy Commissioner in March 2020.
With respect to receipt of any internal review decision EJE wrote: Furthermore the responses of BDM do not address any internal review as I (sic) did not receive an internal review response off BDM although my application for internal review was acknowledged by [name] on 24/04/2020 by email you will find no internal review response contained in respondent's submissions dated 15/03/2021 i (sic) requested a full review of BDM policies, procedures and guidelines have been used to breach mine, my partners and our 4 children's privacy. No justified response off BDM address any issues I raised in my complaints with [name] nor I have any of my complaints being dealt with by BDM including the complaint I made in May in relation to the fact that service receipts were given to me by service nsw (sic) … on 11 and 12 May 2020, when putting in amendment applications in person, and variations of my name …
For clarity, the 14 annexures to EJE's submissions contain: 1. Tab 1 - this includes copy correspondence and emails between EJE and BDM relating to her requests that the birth certificates of one of her sons and herself be amended, and a request for personal information. These are dated with various dates ranging from 31 January 2020 onwards. These documents relate to requests made and events that occurred after EJE lodged the privacy complaint which is the subject of this administrative review application. The review is confined to the matters complained of by EJE which occurred up to and including the date she signed the complaint form, namely 17 January 2020. Later events require a new internal review decision. 2. Tab 2 - copy birth registration forms for EJE's children. There is no explanation as to how these are relevant to the out of time issue. 3. Tab 3 - a privacy complaint made by EJE to BDM dated 7 May 2020 and response from BDM. This is not the complaint that EJE is asking the Tribunal to review. The complaint which is the subject this administrative review was dated 17 January 2000 and received by BDM on 21 January 2000. 4. Tab 4 - a copy of an email complaint EJE made to BDM on 24 February 2020 and an initial response dated 27 February 2020. This refers to a number of requests EJE had made to amend her and her children's birth certificates, which she complained had not been dealt with properly. Once again, this complaint was made after EJE lodged the complaint which is the subject of this administrative review. 5. Tab 5 - this bundle consists of five birth certificates relating to EJE, including her current one. One has notes on it to the effect that it was handed to Service NSW in May 2020. Two bear a different surname and a different (by a letter) middle name. None of these documents is obviously relevant to the administrative review application before me or the out of time issue. EJE has not explained their relevance to the out of time issue. 6. Tab 6 - this bundle consists of a number of births certificates relating to EJE's children. It also contains medical records relevant to their birth. None of these documents is obviously relevant or the out of time issue. EJE has not explained their relevance. 7. Tab 7 - this bundle contains applications made by EJE to BDM to amend her and her children's birth certificates, together with acknowledgements that those applications have been received by service New South Wales, and receipts for the payment of fees, all dated in May 2020. Once again, these requests were all made after EJE lodged the complaint which is the subject of this administrative review. They relate to events after the internal review request was lodged on 21 January 2020. I do not see, and EJE has not explained how they are relevant. 8. Tab 8 - this contains copies of EJE's passport and driver's license. She has not explained how they are relevant. 9. Tab 9 - this is a copy of instructions sent by the Tribunal to EJE concerning how to participate in the hearing on 15 September 2020 in a virtual meeting room. It is not apparently relevant to any issue I have to determine. 10. Tab 10 - copy of the birth certificate of one of her sons together with a letter from the Area Health Service concerning the birth of a son. She has not explained how those are relevant to this case and I can see no relevance to the out of time issue. 11. Tab 11 - email complaint to BDM from EJE dated 3 June 2020 regarding various matters, all of which relate to amendments she had requested to her and her children birth certificates. This appears to relate to requests made from February 2020 onwards and is not apparently relevant to the administrative review I am considering. This is so as the issues arose after the EJE made the privacy complaint. She has not explained how these are relevant. 12. Tab 12 - an email from the office of the Information and Privacy Commissioner (IPC) to EJE dated 24 January 2020 providing advice regarding her privacy complaints against a bevy of people and organisations, six of which were within the jurisdiction, and 22 of which were outside the jurisdiction of the IPC. The letter did advise her that she would have to file separate applications against a number of agencies, including Charles Sturt University. Apart from the reference to Charles Sturt University, who are mentioned in EJE's privacy complaint in this matter, I do not understand why this correspondence is relevant. Once again, the letter is dated after her privacy complaint was made to BDM. EJE in her submissions drew attention to the form of her name in the correspondence, without explaining how it is relevant to the out of time issue. 13. Tab 13 - discussed above at paragraph 40. 14. Tab 14 - a copy of the orders I made in this matter on 10 March 2020, which are quoted at paragraph 26 above.

When and how was the internal review decision given to EJE?

Having considered all the material before me, I am satisfied that EJE received the internal review decision by email on 19 March 2020. She responded to BDM, by querying the decision, within eight minutes. Her receipt of the internal review decision is clear. I have no hesitation, despite her denials that she ever received an internal review decision, in finding that the internal review decision was emailed to her on 19 March 2020 and that she acknowledged its receipt on that day.

Was the application for administrative review made within time?

Rule 24(4)(a1) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules) specifies when applications for administrative review of decisions made under s 55 of the PIPP Act should be made. This requires that applications be made within 28 days after an internal review decision is made, provided the decision is made within 60 days of the internal review request being received by the Agency. If the internal review decision is not made within those 60 days, then the application must be made within 28 days of the latter of: 1. the day on which the 60 day period expires; or 2. the day on which the applicant is notified of the outcome of the internal review.
In EJE's case the request for an internal review was received on 21 January 2020. The internal review decision was due by 21 March 2020. As it was a Saturday, the internal review decision was due by 23 March 2020: see rule 6(4) of the Civil and Administrative Tribunal Rules 2014 (the NCAT Rules). It was sent to EJE within time on 19 March 2020. The internal review decision warned her that: If you are dissatisfied with this decision an application beat can be made to the NSW Civil and Administrative Tribunal, PO Box K1026 Haymarket NSW Wales (1300 006 228). An external review will then take place. Any application to the NSW Civil and Administrative Tribunal must be made within 28 days of this decision.
EJE had 28 clear days from the 19 March 2020 in which to file an application for administrative review with the Tribunal: see rule 6(2) of the NCAT Rules. This means she had to file an administrative review application by no later than 17 April 2020.
Her application for administrative review was not filed until 1 July 2002, two months and 13 days late. It was out of time. As a consequence, unless time is extended, the Tribunal has no jurisdiction to hear her administrative review application.
Section 43 of the NCAT Act is concerned with extensions of time. It provides: (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired.
Rule 8 of the NCAT Rules then provides that: An application for an extension of time made under section 41 of the Act must be made in writing unless the Tribunal dispenses with that requirement.
In this case, EJE has not asked for an extension of time, despite being given a clear opportunity to do so and an explanation as to why her application might be out of time. Her insistence that she did not receive the internal review explains this. She chose not to seek an extension of time in the event that I found against her on that issue, as I have. BDM in its latest submissions made its opposition to any extension of time being granted explicit.
In those circumstances, I do not think it appropriate to extend time of my own motion. The delay in making the application is lengthy. EJE has not availed herself of the opportunity to seek an extension of time, to which she was alerted in the directions I made on 5 February 2021.
I will dismiss EJE's application accordingly.
I record my impression that EJE is juggling many complaints with BDM. They are hard to keep track of. Her correspondence demonstrates that she is inclined to treat them as one ongoing and evolving dispute, rather than as discrete and separate issues. The system of administrative review under the PPIP Act is confined to the review of specific conduct which took place at a point in time prior to the internal review of that conduct. It does not allow for evolving disputes but confines it considerations to specified conduct that occurred before a complaint is made. It is important to keep complaints and the evidence relating to them separate and apart. This case illustrates what can happen when the focus on the specific conduct being reviewed is lost.

Orders.

The Tribunal makes the following orders: 1. Under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal prohibits the disclosure of the applicant's real name. 2. Pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013 the Tribunal dispenses with a hearing in this matter. 3. The administrative review application was made out of time and is dismissed for want of jurisdiction.

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: 13 April 2021

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