This matter concerns a complaint by the applicant under the Privacy and Personal Information Protection Act 1998 (the PPIP Act) about how the respondent, the Commissioner for Fair Trading, dealt with his personal information. An order has been made restricting the publication of the applicant's name and he is referred to in these reasons as ENS. The names of other private individuals have also been anonymised.
ENS is a lot owner in a strata plan. It seems that a dispute arose between another lot owner in the plan (Ms N) and the strata manager of the plan. It appears that this lot owner sought the assistance of the Commissioner for Fair Trading in relation to the dispute and a mediation was scheduled to take place between the lot owner and the strata manager. The mediator was Mr Paul King, a mediator employed by NSW Fair Trading.
On 14 July 2020 Mr King received an email from ENS in which ENS asked: "Please urgently advise whether I and other owners may join this application, and if so how?". Mr King replied by email on 15 July asking ENS to call him. ENS responded later that day advising that he would try and call but asked Mr King to let him know by email as work commitments may prevent him from calling. ENS states that he made two phone calls to Mr King which went unanswered. On 16 July 2020 Mr King sent an email to Ms N advising that ENS had requested to be part of the mediation and asking if that was acceptable to her.
Noting that the mediation was due to be held in a few days and having heard nothing further from Mr King, ENS followed up by email on 17 July 2020. He was then advised by Mr King that, as the mediation process is confidential, he needed to contact the parties to establish whether they agreed to ENS being involved. ENS states that this advice was contrary to earlier advice he had received from NSW Fair Trading which was to the effect that any owner could add their name to an application.
On 17 July 2020 ENS made a formal complaint to NSW Fair Trading about Mr King but it seems this complaint was not actioned and ENS made a further complaint to the NSW Ombudsman. In the first instance, the Ombudsman referred the complaint back to NSW Fair Trading for action.
On 16 September 2020 ENS wrote to Ms Tracey Rance, Manager, Mediation Service Community Engagement, NSW Fair Trading and asked if his request to join the mediation had been communicated to Ms N. Ms Rance responded that it had. ENS responded stating that he did not request to join the mediation but rather sought information about whether he and other owners could join and, if so, how. When he asked for a copy of the request sent to Ms N, he was advised that release of the document would be subject to the provisions of the Government Information (Public Access) Act 2009.
On 22 September 2020 ENS sought an internal review by NSW Fair Trading of the decision of Ms Rance in regard to the access, use, disclosure and correction of his personal information under the PPIP Act. The reference to Ms Rance was in error and should have been to Mr King. ENS also sought review of the conduct of relevant staff in regard to the access, use, disclosure and correction of his personal information. ENS also asked that NSW Fair Trading advise the Information and Privacy Commissioner of these matters.
On 8 October 2020 the Commissioner for Fair Trading responded to ENS's complaint made to the Ombudsman. The Commissioner apologised for the fact that the process by which another party can join a strata mediation was not conveyed to him at the time he made his inquiry. The Commissioner also responded to other concerns raised in the complaint by ENS which are not relevant for present purposes.
In relation to the 22 September 2020 privacy internal review, NSW Fair Trading advised the Information and Privacy Commissioner of the review on 26 October 2020. The internal review was finalised on 21 November 2020. The officer conducting the review identified two information protection principles (IPPs) as being relevant. These were IPP 3 and IPP 11 as set out in ss 10 and 18 of the PIPP Act.
IPP 3 concerns the requirements placed on an agency when collecting personal information and provides:
If a public sector agency collects personal information from an individual, the agency must take such steps as are reasonable in the circumstances to ensure that, before the information is collected or as soon as practicable after collection, the individual to whom the information relates is made aware of the following:
(a) the fact that the information is being collected,
(b) the purposes for which the information is being collected,
(c) the intended recipients of the information,
(d) whether the supply of the information by the individual is required by law or is voluntary, and any consequences for the individual if the information (or any part of it) is not provided,
(e) the existence of any right of access to, and correction of, the information,
(f) the name and address of the agency that is collecting the information and the agency that is to hold the information.
The internal review concluded that Mr King had complied with his obligations under IPP 3 as he made a reasonable attempt to inform ENS of the intended recipients of ENS's personal information in his email of 17 July 2020 which was as soon as practicable after the collection.
IPP 11 concerns the disclosure of personal information and provides:
A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless -
(a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or
(b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or
(c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.
(2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.
The review found this IPP to be relevant as ENS's personal information had been disclosed to a third party by Mr King. The review found there was no beach of IPP 11 as, in accordance with (a) above, the information was disclosed to one of the parties consistent with the Strata Schemes Management Act 2015. It was also stated that Mr King had no reason - based on ENS's original email - to believe that he would object to the disclosure as it was for a related purpose. The review also found that NSW Fair Trading was not required to comply with IPP 11 as disclosure was reasonably contemplated under the Strata Schemes Management Act (s 25 PIPP Act). It was stated that that Act reasonably contemplates that a mediator be able to contact parties to a mediation in relation to the possibility of joining another party to the mediation.
While not identifying any privacy breaches, the reviewer recommended that an apology be made to ENS for failure to provide him with clear information about the process for joining a mediation and the related impact on his personal information. The reviewer also recommended that NSW Fair Trading update its business practices to ensure that adequate notice and information is provided to any party wishing to join a mediation.
[2]
Application to the Tribunal
On 30 December 2020 ENS made an administrative review application to the Tribunal. He sought review of the internal review decision on the following grounds:
The outcome of the request for review by the relevant department fails to address and/or remedy the access, use, disclosure, and correction of my personal information as requested under the Privacy and Personal Information Protection Act 1998 (PPIP Act). The agency has also not modified their position and access to personal information is through the Government Information (Public Access) Act.
The matter has subsequently had a lengthy history before the Tribunal with various attempts made to settle the matter. Following a case conference on 22 February 2021, in a submission dated 19 March 2021 ENS clarified that the issues in his application concerned NSW Fair Trading:
1. disclosing his personal information without his knowledge or permission to unknown third parties;
2. making incorrect representations in his name to those third parties;
3. having frustrated and prevented him from accessing that personal information once the issue was discovered;
4. not correcting his personal information;
5. not correcting his personal information as disclosed by NSW Fair Trading to those third parties.
ENS also referred to the general remedies set out in s 55 if the PIPP Act and stated that the specific remedies he is seeking are:
1. access to all records held by the respondent in regard to the unauthorised disclosures and incorrect representations made by the respondent;
2. the correction of the applicant's personal information held by the respondent;
3. the respondent provide written advice to all parties connected to the mediation application that the applicant did not request to join the mediation application and that as a result the applicant's details must not be used in any subsequent action by those third parties as a purported applicant or supporter of the mediation application or its contents or any subsequent legal action without the express written authority of the applicant.
At a case conference on 10 May 2021 the parties agreed to proposed orders which would resolve the matter. ENS, however, wished to seek further legal advice about his remedies under the PIPP Act. At the time, the Tribunal noted that the draft agreement would have addressed the issues identified at (a), (b) and (c) above. The matter was listed for a further case conference on 7 June 2021 and the parties were put on notice that the matter would be listed for hearing if not resolved.
Directions were made at the case conference on 7 June 2020 and the Tribunal noted that the only matters in issue are (a) that ENS be provided with a copy of the email Mr King sent on 17 July 2020 stating that ENS had requested to join the mediation in relation to the strata dispute, and (b) ENS's requested amendment to his personal information (i.e. that he had requested to be joined to the mediation) in that email. Again, it was noted that the parties would endeavour to resolve those matters before the next case conference. In a letter dated 25 June 2021 ENS reiterated the matters set out at [16] - [17] above.
At the next case conference on 12 July 2021 the parties agreed to the terms of an email to be sent to Ms N advising that ENS did not request to join the mediation and recommending that his details should not be used as set out in (c) at [17] above. Orders made at the case conference note:
The parties are encouraged to attempt to resolve any remaining issues between themselves. If the matter is resolved before the next listing date, the case conference can be vacated and the matter finalised without the need for either party to attend.
The matter was listed for a further case conference on 30 August 2021 at which time it seems that ENS indicated that he was prepared to settle the matter on the basis that:
1. his personal information in the email from Mr King to Ms N on 16 July 2020 asking if he could join the mediation be corrected; and
2. an admission that the internal review dated 21 November 2020 (as a result of matters discussed in the Tribunal proceedings) did not accurately reflect the circumstances of the matter and a copy of the corrected internal review dated 21 November 2020 be sent to Information and Privacy Commissioner.
The Tribunal listed the matter for directions on 21 September 2021 and noted that between then and that listing the parties would attempt to finalise consent orders disposing of the matter "to the satisfaction of both parties". The Tribunal stated that on the next occasion the Tribunal would either make agreed consent orders, accept a withdrawal by the applicant, or, if the matter is to proceed, "fix the residue for hearing (noting that the four grounds in the review application have been substantially dealt with before the Tribunal)" or make directions on any strike out application that the respondent might file.
On 20 September 2021 NSW Fair Trading advised ENS that it would not provide an admission as required by item (2) above. At the directions hearing on 21 September 2021 directions were made for the filing of an application for summary dismissal, documents and submissions from both parties. The parties have agreed that a hearing may be dispensed with and the dismissal application dealt with on the papers.
[3]
Dismissal application
NSW Fair Trading seeks dismissal of the application under s 55 of the Civil and Administrative Tribunal Act 2013 (CAT Act) on two bases:
1. that raising the internal review of 21 November 2020 as a new matter on 30 August 2021 is misconceived and lacking in substance (s 55 (1)(b) of the CAT Act); and
2. as ENS has not provided any evidence in respect of this new matter, there has been a want of prosecution of this matter in the proceedings (s 55(1)(d) of the CAT Act).
NSW Fair Trading in its submissions sets out much of the history of the matter before the Tribunal and refers to the case conferences held on 7 June 2021 and 12 July 2021 where the issues between the parties were clarified as set out above at [19] and [20]. NSW Fair Trading states that following the case conference on 12 July 2021 it has provided ENS with a copy of the email sent by Mr King to Ms N and has emailed Ms N in the terms agreed by ENS informing her that ENS had not in fact requested to be joined to the mediation. NSW Fair Trading states that the sending of this email brought to a close the issues between the parties and that, for the first time on 30 August 2021 ENS raised a further issue, namely, that the internal review decision of 21 November 2020 was incorrect. NSW Fair Trading states that this was a new matter raised by ENS which, at this stage of the proceedings, is misconceived and lacking in substance.
The terms "misconceived" and "lacking in substance" are not defined in the CAT Act but are used in a variety of statutes in a range of contexts dealing with the summary dismissal of matters.
in Alchin v Rail Corporation NSW [2012] NSWADT 142 at [25] and [26] the Tribunal examined the meaning of the predecessor provision to s 55(1)(b) of the CAT Act as found in s 73(5(g)(ii) of the Administrative Decisions Tribunal Act 1997. The Tribunal stated that the term "misconceived" is to be construed as including a misunderstanding of legal principle, and the term "lacking in substance" is to be understood as encompassing an untenable proposition of fact or law. Alchin has been cited in many decisions of the Tribunal, including by the Appeal Panel in BDK v Department of Education and Communities [2015] NSWCATAP 129.
In Choi v Legal Aid Commission of NSW [2020] NSWCATAD 242 the Tribunal noted at [55] that it is important that the legal and legislative context in which the dismissal proceedings arise be taken into consideration. Section 53 of the PIPP Act allows a person who is aggrieved by the conduct of a public sector agency to have that conduct reviewed. Section 52 of the PPIP Act provides that the conduct which may be reviewed is limited to:
1. the contravention by a public sector agency of an information protection principle that applies to the agency;
2. the contravention by a public sector agency of a privacy code of practice that applies to the agency; and
3. the disclosure by a public sector agency of personal information kept in a public register.
The purpose of an internal review is to determine whether the conduct of the agency amounted to a contravention as set out in (a), (b) or (c). In his application for internal review ENS sought review of the "access, use, disclosure and correction of his personal information". NSW Fair Trading, rightly, proceeded on the basis that it was required to determine whether any conduct amounted to a contravention of one or more of the information protection principles. Following finalisation of the internal review, ENS sought administrative review by the Tribunal. Under s 55(1) of the PIPP Act an application for administrative review may be made if a person is not satisfied with:
1. the findings of the review, or
2. the action taken by the public sector agency in relation to the application.
In both his application for administrative review and submissions of 19 March 2021 ENS made plain that he disputed the findings of the internal review and that, in his view, NSW Fair Trading had failed to take action in relation to his application. In both the 19 March and 25 June 2021 submissions ENS identifies as the first issue that NSW Fair Trading disclosed his "personal information without [his] knowledge or permission to unknown third parties". His submissions also sought various remedies.
It is difficult to understand why the submissions of NSW Fair Trading describe the second of the settlement terms proposed by ENS as it relates to the findings of the internal review as a "new matter". As far as I can understand from the papers and the progress of the matter through the Tribunal, ENS has always maintained that the disclosure and use of his personal information by NSW Fair Trading, and in particular, Mr King, was contrary to the provisions of the PIPP Act (more correctly, this should be phrased as a contravention of an IPP but I will continue to use the language used by ENS). While it is apparent that discussions through the case conference processes concentrated on the remedies sought by ENS, those remedies were sought in the context of ENS's belief that NSW Fair Trading had acted contrary to the PIPP Act in dealing with his personal information. This in fact is the basis of the review application as filed with the Tribunal.
NSW Fair Trading has now provided ENS with the email in which his personal information was disclosed and has written to Ms N in the terms outlined above. He has therefore largely achieved the remedies he sought in his submission dated 19 March 2021 (although I note those submissions, while specifying a number of particular remedies also refer to the general remedies available under S 55 of the PPIP Act). NSW Fair Trading, despite agreeing to the remedies sought, maintains that there has been no breach by it of any of the provisions of the PIPP Act or IPPs.
The submissions of NSW Fair Trading do not address whether the application made by ENS demonstrates a misunderstanding of legal principle or puts forward an untenable proposition of fact or law. The submissions made by ENS, while a little difficult to fully understand on occasion, point to the fact that, while he was willing to consider not having the matter proceed to a hearing, this was predicated on NSW Fair Trading "remedying the incorrect assertions and outcomes" in the internal review report. I understand this to mean that, in addition to the correction of his personal information he also continued to seek to challenge the findings of the internal review in relation to the use and disclosure of his personal information.
This is not a matter where the respondent has conceded that there has been a contravention of the provisions of the PIPP Act. While it is regrettable that ENS did not raise more clearly at an earlier point in the proceedings as part of the settlement negotiations that he continued to maintain that the internal review decision by NSW Fair Trading was incorrect in finding that there had been no contravention by it of the PIPP Act, it is implicit in his insistence on certain remedies that he indeed was challenging the decision on that basis. That issue therefore remains unresolved and is an issue which the Tribunal has power to deal with.
It cannot be said that the application demonstrates a misunderstanding of legal principle or puts forward an untenable proposition of fact or law. I am not satisfied that the application is misconceived or lacking in substance.
NSW Fair Trading has now made an application to dismiss the proceedings on the basis that they are frivolous or vexatious, although when arguing that the proceedings should be dismissed for want of prosecution states that continuation of the proceedings is vexatious. I note that ENS has, to a large extent, achieved the remedies he sought as set out in his submissions of 19 March 2021 and it could be argued that continuing the proceedings would not result in him achieving a more favourable outcome and would therefore be frivolous or vexatious. In circumstances, however, where NSW Fair Trading maintains the correctness of the decision under challenge, it cannot be said that, even though ENS has achieved a remedy through the settlement process by which he has gained access to the 16 July 2020 email and certain information has been corrected by NSW Fair Trading, that continuing the proceeding is frivolous or vexatious. This is particularly the case as he has consistently identified that the first issue in the proceedings is the use and disclosure of his personal information contrary to the PIPP Act.
NSW Fair Trading also submits that the application should be dismissed for want of prosecution and refers to the fact that ENS has failed to provide evidence in support of his application. This again seems to refer to the challenge by ENS to the findings of the internal review decision. NSW Fair Trading refers to discussions in case conferences but it is not clear why these are relevant to the application that the matter be dismissed for want of prosecution. Case conferences provide an opportunity for parties to identify issues and explore settlement and it is apparent that considerable effort was expended by the Tribunal and NSW Fair Trading in this regard. No directions, however, were made for the filing of evidence and it is apparent that, while settlement negotiations were ongoing, the matter was not resolved to the satisfaction of ENS.
The only documents ENS was directed to file were the submissions he filed on 19 March 2021 setting out the issues and remedies he sought and further submissions filed on 25 June 2021 in which he reiterated his previous submissions. As noted above, those submissions identified the use and disclosure of his personal information as the first issue in the proceedings. Although the proceedings have been lengthy as several attempts have been made to settle the matter, I am not satisfied that there has been any want of prosecution on the part of ENS who, it must be borne in mind, has represented himself throughout the proceedings.
In short, I am not satisfied that any of the bases put forward by NSW Fair Trading for the dismissal of the application are made out. The application for summary dismissal is therefore refused and the matter is listed for further directions.
[4]
Orders
1. A hearing of the respondent's summary dismissal application is dispensed with.
2. The application by the respondent for summary dismissal is refused.
3. The matter is listed for directions by telephone at 9:30 am on 8 February 2022.
[5]
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: 20 January 2022