FFN v Cumberland City Council

Background to Application

1. In October 2016 a complaint was received by a Council representative concerning the Applicant's conduct whilst working with children as a casual employee of the Council.
2. The events which occurred following the complaint received by the Council on 6 October 2016 are in summary as follows: 1. On 7 October 2016 the Council wrote to the Applicant informing him of the fact that a complaint had been received and that a meeting would be held with the Applicant on 12 October 2016 to raise the matters with the Applicant. 2. On 8 October 2016 the Applicant sought from the Council further information about the alleged complaints. 3. On 12 October 2016 there was a meeting with the Applicant and Council employees Ms Zammit and Ms Campisi at which the alleged conduct was discussed. The Applicant admitted that the Applicant had allowed children to sit on his lap and also made some concessions in relation to the use of a mobile phone contrary to Council's policies. 4. On 13 October 2016 Ms Zammit and Ms Campisi interviewed the complainant about the complaint notified to the Council on 6 October 2016 at which meeting further information was obtained leading to a view being formed by them about what action should be taken in respect of the Applicant's alleged conduct. 5. From this interview the Council employees concluded that a different description was given, a watered-down version. 6. The Council employees, Ms Zammit and Ms Campisi, formed an opinion or assessment that from the description given the conduct was "more awkward" as opposed to "inappropriate". 7. The account given by the complainant on 13 October 2016 was, Ms Zammit said recorded in a file note. 8. Following the interviews with the Applicant on 12 October, and the complainant on 13 October, the Council wrote to the Applicant on 17 October 2016. 9. The letter of 17 October records that the purposes of the interview which had taken place with the Applicant on 12 October 2016 was to highlight the Council's concern in relation to an allegation against the Applicant of inappropriate physical contact with children. The letter contained a warning that a repetition of action or failure to improve may result in disciplinary action that could ultimately lead to the termination of the Applicant's employment and that the interview of 12 October, and the letter, constituted an initial warning in terms of disciplinary proceedings. 10. On or about 17 October the Applicant was verbally informed at a meeting called at his request that no further action would be taken as the complaint had been considered unsubstantiated. It was thus considered that the conduct identified by the Council was not notifiable or reportable to relevant authorities. 11. On 18 October 2016 the Applicant then returned to his next and final shift. 12. On 15 December 2016 there was a further meeting held between Ms Zammit and Ms Campisi and the Applicant at which the Applicant was advised that further notifications had been received regarding what was described as inappropriate interactions with children and there appeared to be a pattern of behaviour.
3. By letter of 22 February 2017 the Council wrote to the Applicant to record the Council's position. Included in the letter is confirmation that "the conduct was found to be unsubstantiated and there was no notifiable conduct proven. The investigation into inappropriate behaviour found that your comments and other actions were inappropriate but we felt that we could continue to monitor your performance as a casual employee".
4. On 30 March 2017 the Applicant raised, in writing, a bullying and harassment complaint against Ms Zammit and another employee, Ms Attia concerning their conduct "over the last few months". Included in this complaint are matters concerning the advice provided to the Applicant on 10 February 2017.
5. As a result of this complaint the Council appointed an external investigator, namely Mr John Counter of O'Connell Workplace Relations, to conduct an impartial and independent investigation of the various complaints made. The Applicant was interviewed as part of his complaint.
6. On 16 June 2017 the Council wrote to the Applicant having received Mr Counter's confidential report to provide the Applicant with what was said to be the key outcomes involving his complaints. In respect of the bullying complaint against the two Council employees referred to above the letter states: Mr Counter found your complaints were not substantiated with evidence supporting the position that steps taken by Council management, including Ms Zammit and Ms Attia, to deal with child protection and performance issues involving you, constituted reasonable management action (as defined by Council's Bullying & Harassment Policy) and not bullying or harassment. Mr Counter noted that while you may be displeased with the advice provided to you at the meeting of 10 February 2017 about your previous interactions with children under your care forming an unacceptable pattern of conduct, this advice appeared to be a reasonable conclusion based on the preponderance of evidence before those managers of Council responsible for child care services at Cumberland Council.
7. In January and February 2018 there was further correspondence between the Applicant and the Council and, it appears, new issues arising concerning reports of the Applicant's conduct whilst he was an employee of the Council.
8. As stated in a letter of 11 February 2019 from the Council to the Applicant tendered in evidence by the Applicant the letter set out to provide to the Applicant, as stated, "the preliminary findings of the investigation into allegations of Reportable Conduct made against you in 2016 - 2017".
9. The letter then continues as follows: As a result of initial inquiries conducted by Cumberland Council staff, a notification was made to the NSW Ombudsman on 21 and 27 July 2017. Subsequently, a review and further investigation was undertaken by O'Connell Workplace Relations into allegations you made of bullying by Council staff. Following O'Connell Workplace Relations' inquiries, a further notification was made to the NSW Ombudsman and the Office of the Children's Guardian in early 2018. On 17 May 2018, Council received a letter from Ms Anna Kakaire of the NSW Ombudsman's Office, pointing out deficiencies in Council's initial investigation and raising concerns that Council's investigation did not fully canvass allegations raised by staff against you. The NSW Ombudsman requested that further inquiries by undertaken to ensure that you were provided with a procedurally fair investigation. Arising out of the correspondence from the NSW Ombudsman, I engaged the Internal Ombudsman Shared Service (IOSS) to manage the investigation from that point. I am aware that the IOSS engaged WISE Workplace to conduct an initial desktop review into the investigation carried out by Council staff and the subsequent inquiries by O'Connell Workplace Relations. As a result of this desktop review, it was determined that a comprehensive investigation should be carried out with a view to ensure that you were provided with the specific details of the allegations against you and that you were offered an opportunity to respond to those allegations.
10. I note that the letter of 11 February 2019 refers to an attachment in respect of allegations first raised with the Applicant in 2016.
11. By letter dated 8 March 2019 the Ombudsman NSW wrote to the General Manager of the Council to record that the Ombudsman had received a complaint from the Applicant regarding the investigation of reportable allegations concerning him by the Council. The letter states that it was understood that Council had advised the Applicant that it proposes to sustain findings of sexual misconduct and ill treatment against the Applicant. That understanding appears to relate to the outcome of the WISE Workplace investigation as recorded in the letter of 11 February 2019 referred to above.
12. On 1 May 2020 the Ombudsman NSW wrote to the Applicant concerning his complaints about the Council's handling of the allegations of sexual misconduct made against him including, to the following effect: I have concluded that, owing to various flaws in the investigations processes undertaken by the Council, it was impossible for Council to be comfortable that there was a sufficient basis on which to [sic] the allegations of sexual misconduct, or any of the other misconduct allegations made against you. Nor could my office be satisfied under the Ombudsman Act s 25F(3), that the reportable allegations were "properly investigated". Given the length of time that has passed since Council concluded their handling of the allegations, I do not consider it feasible or appropriate to have any aspect of the allegations reinvestigated. I have written to the Children's Guardian to inform her of the outcome of my review so the Working With Children Unit may proceed with your application. (errors in the original)

The 7 July 2020 Statement

1. On or about 15 November 2018 the Applicant made an application under the Workers' Inquiry Management and Workers' Compensation Act (NSW) 1998 for compensation arising from psychological injury said to have arisen as a result of the complaint made against the Applicant on 7 October 2016 and the Council's handling of the complaint. In respect of that application, Ms Zammit, then Manager of Children Youth and Families, made a written statement consisting of 11 pages dated 7 July 2020 and signed on 8 July 2020 (the 7 July 2020 Statement) which has been admitted into evidence in these proceedings.
2. As is dealt with in detail below, certain parts of the 7 July 2020 Statement are central to the issues now raised by the Applicant before the Tribunal.
3. The Applicant appears to have become aware of the contents of the 7 July 2020 Statement made by Ms Zammit some time in August 2020. The statement was provided to him by the solicitors acting for him in respect of his claim for workers' compensation.
4. According to the Council the 7 July 2020 Statement signed by Ms Zammit is not in the Council's records and is not accessible to the public. The Council only has in its records, not accessible to the public, a draft the contents of which are not in evidence.
5. It is clear that the 7 July 2020 Statement was prepared for the purposes of responding to the Applicant's workers' compensation claim. The Council did not prepare or assist in the preparation of the statement. It was prepared with the assistance of the solicitors acting on behalf of the Council in respect of that claim.
6. There is no evidence as to whether the 7 July 2020 Statement was ever made public in the sense of being put into evidence in any hearing in respect of the workers' compensation claim. I am unable to determine whether the contents were in fact taken into account in any settlement, or satisfaction, of the claim.
7. In respect of the specific portions of the 7 July 2020 Statement relied upon by the Applicant, it is not possible to determine precisely what was being responded to by Ms Zammit other than, it appears, the broad claim for workers' compensation relating to the Applicant's claims whilst an employee of the Council. The Applicant's claim form stipulates that the date that his injury happened was the 15th of December 2016 ("and other dates").

Points of Claim

1. Pursuant to the order of the Tribunal the Applicant filed Points of Claim on 24 August 2021 consisting of some 15 pages (116 paragraphs).
2. The Points of Claim identify by way of introduction the following: 1. the Applicant's Internal Privacy Review Form identified four main privacy conduct concerns; 2. Item 1 relates to various written statements prepared and used by Ms Zammit on 7 July 2022 regarding the Applicant which were false, misleading and incomplete (a reference to the 7 July 2020 Statement extracts); 3. Item 2 relates to a disclosure made by Ms Zammit in her written statement of 7 July 2020, that during a follow up interview, an unnamed individual "changed their account" by telling Ms Zammit that his conduct was "awkward, rather than being inappropriate"; 4. the privacy breach in Item 2 is said to be that Ms Zammit intentionally withheld contextual information from the Applicant, known to her, that the same witness who claimed that his conduct was "inappropriate" later changed her opinion regarded his conduct to "awkward, rather than inappropriate"; 5. Item 3 relates to the Council's failure to adequately document Item 2; 6. Item 4 relates to the Council's continued misuse of "inappropriate" conduct attributed to the Applicant after it was revealed to Ms Zammit and Ms Campisi that the context of his alleged conduct was "awkward, rather than inappropriate".
3. These claims were summarised by the Applicant in his closing submission of 4 April 2022 as follows: 1. Complaint 1 - this complaint relates to the argument that Ms Zammit's 7 July 2020 Statement contains five inaccurate, misleading and incomplete statements regarding the Applicant which deflected liability away from Ms Zammit and the Council in response to a Work Cover injury claim he submitted to the Council; 2. Complaint 2 - this complaint concerns a complaint that Ms Zammit's comments in the 7 July 2020 Statement revealed that "new, key contextual information" about the Applicant was collected by Ms Zammit on 13 October 2016. The information is identified as conduct complained of being considered by Ms Zammit to "look awkward, rather than inappropriate" and any reference to it, had been intentionally withheld from the Applicant by Ms Zammit until she provided the 7 July 2020 Statement. This complaint is said to breach ss 10(e), 13(c)(1) and (3) and s 14 of the PPIP Act. It is also claimed that in relation to this complaint that from 13 October 2016 to 7 July 2020 Ms Zammit had misleadingly led the Applicant to believe that his conduct was "inappropriate", "reportable conduct" and "child protection" related in subsequent documentation and that she did not ensure that those documents were "up to date, complete and not misleading" and therefore in breach of s 16 of the PPIP Act; 1. Complaint 3 - this complaint is that in the 7 July 2020 Statement Ms Zammit admits that she failed to appropriately document the information she now describes as looking "awkward, rather than inappropriate" and that the Council has provided no verbal or written evidence that that description, as collected from the Applicant's accuser on 13 October 2016 exists. It is therefore said that the information was not protected against "loss" and is in breach of s 12(c) of the PPIP Act; 2. Complaint 4 - this complaint is that the information, namely the "awkward, rather than inappropriate" description was intentionally withheld and undocumented and was not properly available to, or properly considered by the various investigating officers that subsequently examined the Applicant's conduct and this is in breach of s 16, namely the use of the Applicant's "inaccurate, up to date, complete and not misleading information".

Relief Sought

1. In the Points of Claim the Applicant seeks the following remedies, namely that the Tribunal instruct the Council or a third-party investigator to: (a) correct all the inaccurate statements regarding him in Ms Zammit's statement of evidence dated 7 July 2020 (the legislative basis for this request being under s 55(2) of the PPIP Act); (b) provide him with a copy of the revised accurate statement (the legislative basis for this request being s 55(2)(e) of the PPIP Act); and (c) instruct Ms Zammit to acknowledge and apologise for spreading disinformation about him in her statement of evidence of 7 July 2022 (the legislative basis for this request being s 55(2)(e) of the PPIP Act).

Alleged Breaches of the PPIP Act

1. In respect of the claim that the Council breached Principle 10 the Applicant in his Points of Claim stated that: 1. the Council failed to notify him of his right to access "this new contextual information" that Council collected from the witness in breach of s 10(e) of the PPIP Act; 2. the Council failed to notify the Applicant that it collected new critical contextual information from an individual, opining that his alleged conduct "just looked very awkward, rather than being inappropriate" in breach of s 10(a) of the PPIP Act; 3. the Council failed to tell the Applicant that information available to Council in its 2016 investigative process involving the Applicant's alleged conduct was altered in breach of s 10(a) and 10(e) of the PPIP Act; 4. the Council failed to notify the Applicant that it collected new contextual information from the witness as soon as practicable after the collection said to have been on or around 12 to 18 October 2016 but Ms Zammit not disclose that information until 4 years later before she documented this new contextual information in a way that he could access that material in breach of s 10(a) and 10(e) of the PPIP Act.
2. In respect of an alleged breach of Principle 11 rising from the 7 July 2020 Statement the complaint is that: 1. in that Statement Ms Zammit acknowledged that she breached the PPIP Act s 11(a) in neglecting to ensure the Council's records regarding his personal information were accurate, up to date and complete, by failing to document the follow up interview and how his accuser changed her opinion about him; 2. as the subsequent "awkward, rather than inappropriate" context attributed to his behaviour was not clearly documented, the initial context of "inappropriate" and "Child Protection Allegations" remained at the forefront of Council's records regarding the Applicant; 3. Ms Zammit's inadequate, inaccurate and incomplete documentation on the revised context of his accuser's allegation permitted Council to establish a witch-hunt against him without restraint of contemporaneous contextual documentation.
3. In respect of the alleged breach of Principle 12 it is claimed that: 1. Ms Zammit's failure to clearly document the subsequent interview or the revised "awkward" context of the allegation is in breach of s 12(c) of the PPIP Act because this contextual information was for all intents and purposes "lost" for almost 4 years; 2. Council's second internal investigation against the Applicant in 2017, the O'Connell Group investigation against him in 2017-2018 and the WISE Workplace investigation against him in 2018-2019 had inadequate access to this contextual information when they were investigating him, because it was not clearly and contemporaneously documented by Council; 3. the Applicant was not offered procedural fairness by these external investigative agencies because he was being investigated for "inappropriate" conduct, when he was actually accused of conduct that just looked "awkward".

The Legislative Framework

1. The PPIP Act is beneficial legislation which is to be interpreted broadly so that persons can obtain the maximum benefit from the rights that are affected (GA & Ors v Department of Education and Training and NSW Police [2004] NSWADTAP 18 at [48]).
2. The PPIP Act aims to strike a balance between a person's rights to privacy and the need to preserve an agency's capacity to carry out its functions (MG v Department of Education and Training [2004] NSWADT 137 at [39]).
3. The PPIP Act regulates the manner in which NSW government agencies, including the respondent Council, and certain other entities deal with and manage personal information. Sections 8 to 19 of the PPIP Act set out the 12 Principles that govern the way in which an agency, including the respondent Council, must collect, store, access, use and disclose personal information. Personal information is defined in s 4 of the PPIP Act.
4. Part 5 of the PPIP Act provides for the review of certain specified conduct of public sector agencies such as the respondent Council. Relevantly, the conduct set out in s 52 of the PPIP Act is as follows: (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 the public register.
5. The PPIP Act provides for an internal review of the conduct of a public sector agency by an aggrieved person. Section 53 reads as follows: (1) A person ("the applicant") who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct. (1A) There is no entitlement under this section to the review of the conduct of a Minister (or a Minister's personal staff) in respect of a contravention of section 15 (Alteration of personal information). [Note: Any such conduct can still be administratively reviewed by the Tribunal. See section 55 (1A).] (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 an administrative 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. (7A) A public sector agency may not pay monetary compensation under subsection (7) if - (a) the applicant is a convicted inmate or former convicted inmate or a spouse, partner (whether of the same or the opposite sex), relative, friend or an associate of a convicted inmate or a former convicted inmate, and (b) the application relates to conduct of a public sector agency in relation to the convicted inmate or former convicted inmate, and (c) the conduct occurred while the convicted inmate or former convicted inmate was a convicted inmate, or relates to any period during which the convicted inmate or former convicted inmate was a convicted inmate. (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, administratively reviewed by the Tribunal.

Documented Complaint to the Council

1. It is clear that in order to determine whether there was in fact a breach of the principles relied upon it is necessary, in the first instance, to examine the documented complaint to the Council concerning the alleged conduct of the Applicant in 2016, the handwritten complaint of 6 October 2016, the minutes of 13 October 2016 with the addition added in handwriting on 26 May 2018 and the 7 July 2020 Statement.
2. There was extensive evidence given concerning these issues in the proceedings and Ms Zammit was also cross-examined at length about the process that she adopted both in 2016, 2018 and then later in respect of the making of the 7 July 2020 Statement.
3. Ms Zammit gave evidence which I accept that the assessment that the conduct "looked very awkward" in her 7 July 2020 Statement was not what the complainant had recorded in the handwritten complaint of 6 October 2016 and was not what the complainant had said in the follow up meeting of 13 October 2016. The assessment that the conduct "looked very awkward" was what Ms Zammit and, it appears, Ms Campisi made of what the complainant had recorded and subsequently described. Their assessment was not what the complainant had stated and was not the words of the complainant but Ms Zammit's assessment subsequently described in her 7 July 2020 Statement.
4. That evidence is borne out in the two documents, namely the 6 October 2016 complaint and the minutes of 13 October 2016. The words "looked very awkward" are also not recorded in the addition to the 13 October 2016 minutes made on 26 May 2018.
5. As I point out above, the very first occasion that these words were used were by Ms Zammit some years later in the 7 July 2020 Statement prepared for the purposes of the Applicant's workers' compensation claim.
6. My assessment of all the above evidence leads me to find that: 1. the opinion or assessment made by Ms Zammit and, it appears, Ms Campisi on 13 October 2016 following the interview with the person who had made a complaint to the Council that the "actions just looked very awkward, rather than being inappropriate" was their assessment of the complaint and not what the complainant had said to them or recorded in the original complaint; 2. those words were not recorded in the Council's records at the time, or at any time thereafter; 3. the first time that the assessment was reduced to writing was by Ms Zammit in the 7 July 2020 Statement and in response to the Applicant's workers' compensation claim; 4. once the assessment was reduced to writing in the 7 July 2020 Statement, it was communicated to the Applicant through that statement provided to his solicitors; 5. the purpose of then setting out the assessment formed by the two Council employees in 2016 in the 7 July 2020 Statement was thus solely for the purposes of responding to the Applicant's workers' compensation claim.

Complaint 1

1. The Council in its written closing submissions submits that: (a) Much of the Applicant's cross examination of Ms Zammit and his closing submissions were and are devoted to attempting to disprove the truthfulness of the following five excerpts from a statement prepared by Ms Zammit on 7 July 2020 in Workers Compensation Proceedings No. 2847/20 involving the Applicant, the Respondent and the Respondent's insurer: (i) "essentially it was the Ombudsman's office who conducted the further investigations" (ii) "Council did not change its mind on a past internal investigation" (iii) "We did not contact the OCG" (iv) "We kept (the Applicant) informed during the process" (v) "we informed (the Applicant) of our finding. (The Applicant) then returned to work" (b) In the points of claim (Exhibit 2, paragraphs 98-115), the excerpts are advanced by the Applicant as breaching of s 16 of the PPIP Act. In the Applicant's closing submissions the first and third excerpts are also advanced, for the first time, as breaching s 15 of the PPIP Act.
2. The Council further argued that: 1. the five excerpts are concerned with Council's conduct or the Council's understanding (via Ms Zammit) of actions of the Ombudsman's office. The fourth excerpt mentions the Applicant but the statement is concerned with the Council's actions; 2. the only personal information contained within the five excerpts relates to the second sentence in the fifth excerpt, that is that the Applicant, being the applicant in these proceedings, then returned to work. The Applicant does not cavil with the fact that the Applicant returned to work, rather the Applicant's application only takes issue with the first sentence of the fifth excerpt that the Council informed the Applicant of its findings; 3. the first four excerpts and the first sentence of the fifth excerpt do not involve personal information. They do not include information about the Applicant. They do not include an opinion about the Applicant; 4. whilst Ms Zammit's 20 July workers' compensation statement (the 7 July 2020 Statement), in its totality, does include personal information about the Applicant, the specific conduct (or statements) the subject of this privacy review application, i.e. the five excerpts, do not, other than to the limited extent of the second sentence in the fifth excerpt which the Applicant does not take issue with; 5. in the context of s 16, the five excerpts do not demonstrate that the Council has used information about the Applicant; 6. the Applicant claims that the excerpts are inaccurate, misleading and incomplete. The Tribunal need not trouble itself with that claim because that goes to a subsequent element of s 16 that the information is accurate, complete and not misleading. That subsequent element only has relevance if the Tribunal is first dealing with personal information about the Applicant, which it was argued is not the case; 7. finally, even if the Tribunal were to find against the Council on s 16, there are no consequences to speak of for the Applicant that require some form of remedy or redress. If the Applicant or the Applicant's legal advisers took issue with components of Ms Zammit's workers' compensation statement, they had the opportunity to test and counter those components in the workers' compensation proceedings. Instead, and without liability admitted by the Council, the Applicant elected to settle the workers' compensation proceedings and in doing so brought to finality the Applicant's workers' compensation claim and any grievance or dispute the Applicant may have had with the Council's evidence; 8. the Applicant seeks corrections in respect of the first and third excerpts from the workers compensation statement under s 15. The Council says relief is not available because the excerpts do not concern personal information about the Applicant.

Complaints 2, 3 and 4

1. The Applicant's Complaint 2 proceeds on the basis that the complainant had described the Applicant's conduct as "just looked very awkward". The further element of Complaint 2 is that Ms Zammit intentionally withheld that information claiming that the same complainant (witness) had changed her opinion regarding his conduct from "inappropriate" to "awkward" rather than "inappropriate".
2. Complaint 3 then raises the issue that the Council failed to adequately document Item 2 as I have described above.
3. Complaint 4 also proceeds on the basis that it was revealed to Ms Zammit and Ms Campisi that the context, which I interpret as the change alleged to have been made by the complainant to Ms Zammit and Ms Campisi on 13 October 2016, was so described by the complainant.
4. In addition, it appears from paragraph 63 above, the Applicant's complaints are that the Council had collected that contextual information from the witness and then withheld it from him.
5. Although it is not articulated precisely as such it is also apparent that the Applicant approaches the matter on the basis that the Council was obliged to document Ms Zammit and Ms Campisi's assessment based on what they had seen and heard.
6. In this context it should be noted that the addition to the minutes of 13 October 2016 "to further describe what had been seen" was to qualify that the Applicant "may not have touched" the child the subject of the complaint.
7. As I point out above, the "information" the subject of the Applicant's Complaints 2, 3 and 4 is the description in the 7 July 2020 Statement of conduct as "looked very awkward" made of the Applicant's conduct by the complainant on 13 October 2016. That information was in my view: 1. information held in the minds of Ms Zammit and Ms Campisi; 2. not information collected by the Council but the views formed by those two Council employees from the oral description of the conduct the subject of the complaint on 13 October 2016; 3. not information held by the Council (at least until it finds its way into the possession of the Council in the proceedings when the 7 July 2020 Statement is relied upon by the Applicant).
8. In FFP v Cumberland City Council [2022] NSWCATAD 194 the issue of whether a communication from the General Counsel of Cumberland City Council to the Office of the Children's Guardian, which occurred in the context of proceedings initiated by that applicant as against the Council in this Tribunal in which he alleged, amongst other things, that an interim bar had been placed on his working with children check by the OCG due to a disclosure by the Council. On the face of it, the complaint concerning the OCG referred to in that matter is part of Complaint 1 in the current proceedings before me.

Claim for Compensation

1. In paragraph 53(c) of the Applicant's Points of Claim, the Applicant claims that he be awarded compensation in the form of financial recompense for damages as a result of the Council's conduct. The claim in respect of an alleged breach of s 10 of the PPIP Act reads as follows: "NCAT to instruct Council to pay appropriate financial compensation to me for the impact of this gaslighting has had on my mental health, self-confidence and capacity to work. The legislative basis for this request is under PPIP Act s 55(2)(a)".
2. The Applicant sets out the basis of that claim as follows: "I ask for financial recompense for damages for; Council choosing to withhold key contextual information collected about me on 13 October 2016, intentionally misleading me to believe my conduct was far worse than it was described to the Council, for failing to properly document information collected regarding me, failing to protect my information against loss, and failing to provide the (non-existent) documentation of the information to Council's investigating Officers to consider their various subsequent investigations regarding me."
3. The Applicant's workers' compensation claim was settled by agreement between the parties. The details are set out in the Deed of Release he entered into in settlement of his claim, a settlement which contained compensation and damages.
4. The Deed contained terms releasing the Council, employees, and agents from all claims of any kind arising out of or incidental to the Applicant's claim. The Deed further contained the following bar to further proceedings: The Parties agree that this Deed of Release may be pleaded as a complete bar to any action, suit, proceeding or third party proceeding commenced, continued or taken by any party to this Deed of Release or on that party's behalf in connection with any of the matters referred to in this Deed of Release except for breach of a provision of this Deed of Release.
5. The Council seeks to rely on this provision. In my view, where the Applicant has in effect made a claim in these proceedings for financial compensation in respect of the same conduct encompassed in his workers' compensation claim the Council should be entitled to rely on the release and bar against further claims. Although the Deed contains a confidentiality clause it would be unconscionable for the Applicant to deny the operation of the plea in bar in these proceedings. Accordingly, the Deed was admitted into evidence.

Complaint Dated 23 January 2023

1. As I point out above, the first element of the Applicant's complaint raised in his response to the 14 December 2022 directions issued by the Tribunal raises the question that I failed to ensure that effectively there are no contemporaneous records before the Tribunal to consider whether the conduct complained of in Complaints 2, 3 and 4 can be properly determined and that I had, it appeared, only recently realised that. He then pointed to various events throughout these proceedings "that should have prompted this realisation". He also made specific reference to extracts from his "Summary of Legal Arguments" dated 3 November 2021.
2. The Applicant submitted that I had not challenged the withholding of documents he had sought by the Council "as an excuse to withhold relevant documents in these proceedings" and that could have been overcome by me issuing a summons for their production. He then made reference to a summons application he made on 22 October 2021 which was refused by the Tribunal and also further applications in September 2022 which I note culminated in the proposed hearing to deal with the applications as referred to at paragraph 16 above.
3. The Applicant then submitted that it was "now clear that the Tribunal does not have access to all information that Council has".
4. The Applicant then questioned whether it was the Tribunal's responsibility to ensure that the Council provided all evidence/documentation relevant to the proceedings and, if it was, the Tribunal "failed in its role".
5. In support of this complaint he complained that I had made orders to "invite" Council to address the issue, a reference to the 14 December 2022 directions quoted above.
6. The Applicant then claimed the directions were "soft on Council", I should have recognised earlier that documentation he had identified was relevant and necessary, and that I should have either approved the summons for service, or ordered Council to comply with s 58(1)(b) of the ADR Act.
7. This led the Applicant to submit that I should apologise for the oversight and/or recuse myself due to a perceived bias in favour of allowing Council to withhold relevant documents from the Tribunal.
8. The Applicant then further submitted that if it was the Council's responsibility to "proactively" provide to the Tribunal all evidence and material it considered relevant, it failed to comply with s 58(1)(b) of the ADR Act and the Tribunal should consider whether the Council's failure "may constitute contempt of the Tribunal".

23 February 2023 Recusal Application

1. My reasons for declining to recuse myself from further hearing of this review application raised by the Application on 23 February 2023 are as follows: 1. the issue of the "miscellaneous application" dated 23 January 2023 concerning s 64 of the CAT Act had fallen away and the documents required to be served for the purposes of affording the Council a proper opportunity to respond, were served; 2. the fair-minded lay observer would not reasonably interpret any of the steps taken by the Tribunal as "persistently overly lenient on the Council" as there would be an understanding of the need to deal with the review by a proper application of the law to the facts, not an attempt by the Tribunal to have the matter dismissed on technicalities as alleged by the Applicant; 3. the claim that allowing late evidence favoured the Council, by implication, has no foundation as the documents produced by the Council on 13 January 2023 are embraced and relied upon by the Applicant in his submissions to his advantage and there was a valid basis for earlier admitting into evidence the Deed of Release in answer to the Applicant's claim for compensation; 4. there was no amplification or material pointed to by the Applicant which supported the assertion that I had been unable or unwilling to "understand various aspects" of the Applicant's case and noting that the Applicant also chose to forego the opportunity afforded to him and the Council to orally address the Tribunal in closing to explain or emphasise any aspect of their respective positions; 5. a fair-minded lay observer cognisant of the facts (see paragraphs 6 to 21 above) would not attribute to me an inability or unwillingness to finalise these proceedings in a timely manner where the delays must, to a significant extent, rest with the Applicant and also by the need to afford procedural fairness to the parties; 6. a fair-minded lay observer cognisant of the role of the Tribunal and the nature of proceedings for review would not attribute to me an inability to bring to bear an independent view on the issues by reason of "a failure" by me to compel the production of documents and with knowledge that the Applicant chose not to pursue his application for a summons for production.
2. Accordingly, the Applicant failed to substantiate a basis for me to recuse myself.

Question of Relief

1. As I have concluded that the "inaccurate statements" said to be regarding the Applicant to have been made in the 7 July 2020 Statement are not within the scope of "personal information" the relief set out at paragraph 65 above, claiming the correction of such statements, the production of a revised accurate statement (the workers' compensation statement) and an apology from Ms Zammit must be refused.
2. I should add that I would in any event decline to grant relief of this kind in respect of a statement prepared for different proceedings which have been concluded, by agreement. The 7 July 2020 Statement is of a different nature to information collected and held by the Council for the purposes of the PPIP Act.
3. In respect of the claim that the Tribunal should instruct the Council or a third-party investigator to conduct a fact-finding investigation as to why the Applicant was not notified by the Council as soon as practicable about the "just looked awkward, rather than inappropriate" statement in the 7 July 2020 Statement and to apologise and correct the Council's records accordingly (see paragraphs 53(a) and (b); 64(a) to (c) of the Points of Claim): 1. the Applicant has failed to establish the alleged breaches in respect of the 7 July 2020 Statement; 2. there would in any event be no useful purpose served in my view for an inquiry of the kind now sought, in circumstances where: 1. the evidence has established how and for what purpose the 7 July 2020 Statement was created; 2. the Applicant in his 23 January 2023 submission equates the contents of the 7 October and 13 October 2016 record with Ms Zammit's views; and 3. very significantly there has now been a lapse of many years since the complaints were first raised, and there is no justification for the incurring of the cost, and time, which would be involved in such an inquiry, even assuming that all relevant persons are still available.
4. In respect of the Applicant's claims for compensation and damages (see paragraphs 53(c) and 82 of the Points of Claim) the Applicant has failed to make out a case of breach and, in any event, I would decline to make an order for compensation in circumstances where the Applicant sought and received a significant sum in compensation for his workers' compensation claim for essentially the same conduct complained of. The Council is in my view entitled to rely on the plea in bar of the claim as set out in the Deed of Release entered into by the Applicant when represented by his solicitors in his workers' compensation claim.

Conclusion

1. For all the reasons set out above and in the exercise of the discretion under s 53(2) of the PPIP Act my decision is not to take any action on the matter and an order to that effect will issue.

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

Amendments 20 June 2023 - Paragraph 195 amended. 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 June 2023