The Applicant is FGW. She commenced proceedings in this Tribunal pursuant to Pt 5 of the Privacy and Personal Information Protection Act 1998 (NSW) (the PPIP Act).
By this interlocutory application the Secretary, Department of Communities and Justice (the Respondent) seek that part of the Applicant's case be struck out and leave be granted to the Applicant to particularise those parts not struck out.
[2]
Brief background and Chronology
The factual background is not in dispute.
On 10 April 2021, the Applicant lodged a Privacy Complaint: Internal Review Application Form pursuant to s 53 of the PPIP Act (the Original Application for Internal Review). By that application the Applicant alleged that a Departmental Child Protection Worker breached her privacy by disclosing personal information to her ex-partner's family by allegedly disclosing that:
1. The Applicant had allegedly refused to participate in a urinalysis test; and
2. The Applicant had not attended a contact visit with her children (the Original Allegations).
On 15 November 2021 by email the Applicant made further allegations regarding certain disclosures to her mother (the Second Allegations).
The Respondent published an Internal Review Decision on 11 January 2022 which addressed the Original Allegations. In respect of the Second Allegations the author of the Internal Review Decision stated (at [66]-[67]):
I have carefully considered these further allegations and the information you have provided. These further allegations do not form part of your original application and are not linked to your original complaint.
On the limited information provided I am unable to assess whether the PIPP Act will apply to any alleged disclosure and I am unable to determinate whether these allegations can be investigated by way of an internal review under s 53.
The Applicant then commenced these proceedings seeking administrative review including a supporting affidavit that raised the failure to address the Second Allegations.
The Respondent raised the issue of the alleged lack of jurisdiction to consider the Second Allegations in correspondence to the Tribunal on 14 April 2022. The issue was addressed at a case conference on 19 April 2022 and this Tribunal directed that the Respondent file and serve a strike out application on or before 6 May 2022 with the Applicant to file and serve submission in reply on or before 20 May 2022. The parties complied with those directions.
On 19 April 2022 the Applicant lodged a subsequent application for review pursuant to s 53 of the PIPP Act (the Second Application for Internal Review) addressing the Second Allegations. The Respondent has commenced investigations in respect of the Second Allegations and will provide findings by 17 June 2022.
[3]
Respondent's Submissions
The Respondent submits that the Tribunal has jurisdiction to review the conduct that was subject of the Original Application for Internal Review pursuant to s 55(1) of the PPIP Act. The jurisdiction does not extend to the Second Allegations as the Second Allegations did not form part of the First Internal Review Application and were not, by agreement, made part of the Original Internal Review Application. Until the Second Application for Internal Review was lodged on 19 April 2022 there is no competent application for review pursuant to s 53 of the PIPP Act. In lodging the Second Application for Internal Review it is submitted that the Applicant has, in effect, "conceded" that the Second Allegations did not form part of the Original Internal Review Application "and has acknowledged the Respondent's jurisdiction under s 53(1)".
[4]
The Applicant's Submissions
The Applicant accepts she lodged the Second Application for Internal Review but says that she did so following discussion at the case conference. Despite lodging that application for review she contends that the Second Allegations "should be looked at in these current proceedings". She further submits that the solicitor for the respondent sought further information regarding the Second Allegations from her by email in November 2021 (to which she responded in writing) and so should have been addressed in the Original Application for Internal Review.
[5]
Decision
This Tribunal has jurisdiction under s 55(1) of the PPIP Act to review conduct that was the subject of an application under s 53. Section 53(5) of the PIPP Act provides:
(5) In reviewing the conduct the subject of the application, the individual dealing with the application any relevant material submitted by -
(a) the applicant, and
(b) The Privacy Commissioner.
I note here that the Privacy Commissioner did not wish to participate in the matter.
A review of conduct under the PPIP Act is not at large.
The scope of the "conduct" must be determined using the applicant's description of the conduct in their review request, including any attachments to their application, any subsequent clarifying correspondence or discussions, and any description by the applicant of what the "contraventions" might be: DQW v Secretary, Department of Family and Community Services [2019] NSWCATAD 213 at [23]; Department of Education and Training v GA (No 3) [2004] NSWADTAP 50.
The Original Application for Internal Review was lodged in April 2021. The Second Allegations were not ventilated until November 2021 and amounted to a separate and distinct (although not fully particularised) allegation where information was allegedly disclosed to a different person and in respect of different matters. As against that the Original Application for Internal Review was in respect of the matters particularised in paragraph 4 above. The Second Allegations relate to a separate event and have a different factual substratum. The need to identify and clearly specify the allegations the subject of a review and to ensure they are not allegations at large that traverse separate events and times was discussed in EJE v Registrar of Births Deaths and Marriages [2021] NSWCATAD 92 at [56] Molony SM stated:
The system of administrative review under the PPIP Act is confined to the review of specific conduct which took place at a specific point in time prior to the internal review of that conduct. It does not allow for evolving disputes but confines its 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.
With respect, there is good sense to the reasoning of Senior Member Molony. As for civil matters where pleadings limit the scope of matters for consideration by the Court, the allegations of specified conduct form the basis for an application for administrative review in this Tribunal. It would be unwieldy and inefficient to allow separate and new allegations to be raised on a continuing basis.
The Original Application for Internal Review did not include the Second Allegations. In my view, the Respondent was entitled to rely in the foundation of the Original Application for Internal Review as the basis for conducting its investigation and review. It conducted the review and published its decision but did not address the Second Allegations. It was reasonable to do so and I agree that the Second Allegations did not form part of the original complaint. In those circumstances the Tribunal does not have jurisdiction to consider the Second Allegations in these proceedings: Department of Education and Training v ZR (No 2) [2009] NSWADTAP 30 at [32].
I also consider that there was no agreement to widen the scope of the review by the Respondent to include the Second Allegations in the Original Application for Internal Review as the Second Allegations were raised some seven months after the Original Application for Internal Review was lodged (April 2021 and then November 2021). The Second Allegations comprised a discrete incident of alleged disclosure by an unidentified officer to a different person. Finally, the Original Application for Internal Review was close to completion. I am not satisfied that the correspondence between the Applicant and the Respondent's solicitor indicates a consent to widen the scope of the review. Specifically, Ms Dunford wrote to the Applicant in the following terms:
…I wanted to offer you with a further opportunity to provide the Department with any evidence or further information about the alleged breach of privacy.
In my view, the request for further information was not an invitation to raise fresh allegations but to provide information relevant to the Original Application for Internal Review so that all facts and matters were put to the Respondent for consideration.
It does not assist the Applicant that there are cosmetic similarities in the Original Allegations and the Second Allegations (i.e. they are a breach of privacy by an officer of the Respondent and relate to child protection). In my view, the Original Application for Internal Review related to particular disclosures by a particular officer of the respondent on a particular occasion, to particular individuals. That bound the scope of the enquiry and do not merge or extend to a new allegation relating to a different (unidentified) officer being a disclosure to a different person (her mother): see KO and KP v Commissioner of Police [2005] NSWADT 18 at [13].
The Applicant lodged an application for review in respect of the Second Allegations in April 2022 (which has been accepted as a competent application by the Respondent). That, it is submitted, amounts to:
…an implied agreement between the parties that the Further Allegations (the Second Allegations) have not been previously put to the Respondent for a review under s 53 of the PIPP Act prior to the Second Application for Internal Review.
…
the Applicant has conceded that the Further Allegations did not form part of the First Application for Internal Review and therefore the Tribunal has no jurisdiction to review that conduct as part of these proceedings.
I do not agree that lodging the Second Application for an Internal Review supports the existence of the implied agreement proposed by the Respondent. A number of options were open to the parties including broadening the scope of the Original Application for Internal Review by agreement or the Applicant lodging a second application for review. Where the second option occurs (as here) then rights are enlivened under the PIPP Act. Those rights do not, however, merge with the existing application. They are separate and distinct and should be treated as such.
The Tribunal does not have jurisdiction to consider the Second Allegations as those allegations did not fall within the scope of the Original Application for Internal Review.
The Respondent seeks an order that the "Applicant be provided with an opportunity to particularise the remaining matters that do not form part of the Further Allegations". The reason for that order was not expanded on in the submissions and it is not clear to me what it relates to. In my view, that is a matter that can be dealt with by consent between the parties and if there is any genuine dispute it can be dealt with at the next directions on 20 June 2022.
[6]
Orders
1. In so far as they purport to relate to the allegations made by FGW in an email dated 15 November 2021, the proceedings are dismissed for want of jurisdiction.
[7]
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
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Decision last updated: 16 June 2022