FHY v Cumberland City Council; FGJ v Cumberland City Council

NCAT Administrative and Equal Opportunity|2023-04-04

The publication or broadcast of the name of the Applicant is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

In 2022/00076498: On 19 April 2022, the Tribunal, differently constituted, made the following order:

The publication or broadcast of the name of (the Applicant) (FHY) is prohibited. This order is made under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

Introduction

These proceedings concern two applications filed by FHY/FGJ (who is the same person) (the Applicant) under s 55 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) for administrative reviews under s 55(1) of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) of conduct of Cumberland City Council (the Agency) which he alleges was in contravention of an Information Privacy Principle (IPP) contained in Part 2, Division 1 of the PPIP Act (the impugned conduct). These applications were made to the Tribunal on 16 December 2021 (the first application) and 17 March 2022 (the second application).
Both applications were originally made on the basis that the Agency had failed to conduct an internal review in response to a 'Privacy Complaint: Internal Review Application' he had lodged with it on 13 October 2021 (the first complaint) and 13 December 2021 (the second complaint) within the 60 days required by s 53(6) of the PPIP Act. By operation of that section, on the elapse of 60 days, the Applicant became entitled to apply for administrative review of the conduct that was the subject of his internal review applications.
On 19 April 2022 the second application was listed for the first time before the Tribunal, differently constituted, for a Case Conference. At that Case Conference, by consent, the second privacy complaint was remitted to the Agency for reconsideration by way of internal review. The Agency issued the Applicant with its decision in the internal review by letter dated 17 June 2022. In short summary, the privacy complaint was not substantiated, and the Agency determined in accordance with s 53(7)(a) of the PPIP Act to take no further action on the matter. It is this internal review decision that is now subject to administrative review by the Tribunal (the first reviewable decision).
On 30 May 2022 the first application was listed before the Tribunal, differently constituted, for the sixth time for a Case Conference. At that Case Conference, by consent, the first privacy complaint was remitted to the Agency for reconsideration by way of internal review. The Agency issued the Applicant with its decision in the internal review by letter dated 30 June 2022. In short summary, the privacy complaint was not substantiated, and the Agency determined in accordance with s 53(7)(a) of the PPIP Act to take no further action on the matter. It is this internal review decision that is now subject to administrative review by the Tribunal (the second reviewable decision)
There can be no doubt on the evidence before me that the Applicant has been through a terrible ordeal. However, this Tribunal does not exercise jurisdiction at large. Its task in these proceedings is to answer the relatively narrow question of whether the impugned conduct (whatever else it may be) constitutes a contravention of the PPIP Act (or IPP). For the reasons set out following I am not satisfied to that it does. I have therefore determined to take no action on either matter.

Procedural history

The present applications are two of a number of applications for administrative review the Applicant has made under the Government Information (Public Access) Act 2009 (NSW), the Health Records and Information Privacy Act 2002 (NSW) and the PPIP Act in relation to essentially the same factual substratum. It is not possible to sketch the whole of that picture because of its scope and complexity.
The progress of the first complaint was initially delayed, on the application of the Applicant, pending finalisation of related first instance, then Appeal, proceedings under the GIPA Act.
The second application came before the Tribunal for a Case Conference on 20 June 2022 after the internal review decision had been made on 17 June 2022 following remittal of the complaint. The outcome of that Case Conference was referral of the matter for Mediation which was to be conducted on 24 August 2022. At that time, there were 5 additional active administrative review applications before the Tribunal filed by the Applicant against the Agency. This included the first application in these proceedings. The Tribunal noted that the Mediation referral was limited to the second application but offered an opportunity for the parties to attempt to resolve the whole of the dispute. That was confirmed by a Tribunal, differently constituted, on 30 June 2022 which heard and dismissed an application for a stay of each of those other applications pending the outcome of the Mediation in the second application.
Mediation was conducted on 24 August 2022 but was not completed. It was adjourned to 8 September 2022. However, by 1 September 2022 the parties had reached agreement that further Mediation was futile. They notified the Deputy Divisional Registrar accordingly, which resulted in the Mediation being vacated and in the second application being listed on 12 September 2022 for Directions for the conduct of the matter to final hearing.
The second application came before the Tribunal, differently constituted, on 12 September 2022. However, no Directions were made on that occasion. The matter was adjourned to 18 October 2022 for Directions and to be listed with the first application in these proceedings. That was done in a context, as noted on the Tribunal's order, where the Agency had presented the Applicant with a settlement offer and negotiations in relation to the settlement offer had not yet been finalised.
On or about 14 October 2022 there was a further application for referral of the whole dispute for Mediation, which was refused by a Tribunal, differently constituted, for short reasons given in writing.
Both applications came before the Tribunal, differently constituted, for Directions on 18 October 2022. At that listing the Tribunal made directions for the Agency to lodge with the Tribunal and give to the Applicant the 'material documents' related to the privacy complaints (the s 58 documents) before 1 November 2022; for the Agency to give to the Tribunal and the Applicant any application for non-publication order(s) under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) and/or in relation to any objection to lodgement under s 59 of the ADR Act before 1 November 2022, which would be dealt with by that Tribunal on 21 November 2022; and for the filing and exchange of evidence, submissions, and list of witnesses required for cross-examination at the final hearing. The hearing of the application was set down for 2 February 2023.
Prior to the Directions Hearing conducted on 18 October 2022, on or about 21 September 2022, the Applicant had issued a summons to the Agency requiring it to produce various documents, which was apparently returnable at the Directions Hearing. The Agency objected to the Applicant being provided with access to various documents within the scope of the summons. The Tribunal, differently constituted, dealt with those objections, approving the Applicant's access to some information, and prohibiting his access to other information, for reasons given in short form at the time.
Pursuant to the Direction given on 18 October 2022 the Agency filed and served an application pursuant to s 59 of the ADR Act objecting to lodging with the Tribunal certain documents related to the privacy complaint. The Tribunal, as constituted on 18 October 2022, heard, and determined that application on 21 November 2022. By order 5 of the Orders made in disposition of that application the Tribunal determined that part of document 18 did not have to be lodged. The Applicant applied for reasons for that decision pursuant to s 62 of the NCAT Act. The Tribunal published its reasons on 13 December 2022.
At the 21 November 2022 hearing the Tribunal vacated its previous direction in relation to the filing and exchange of the Applicant's evidence and submissions in chief, which had consequential effects on the remainder of the timetable. The application was listed for further Directions with the first application on 1 December 2022.
The first and second applications came before the Tribunal as constituted on 18 October 2022 and 21 November 2022 for Directions on 1 December 2022. The hearing set down for 2 February 2023 was vacated and both matters were set down for hearing together on 2 and 4 April 2023. All previous procedural directions in both matters were vacated. Further directions were made for the filing and exchange of evidence. In a note to those Directions, the Tribunal recorded: "[t]he parties note and agree that the pre-hearing discovery processes (concerning s 58 and 59 of the ADR Act, and the summons objections) are now finalised".
On or about 23 January 2023 the Applicant applied for an extension of time in which to comply with the direction concerning the filing and exchange of his evidence and submissions. A Tribunal, differently constituted, granted this extension of time and extensions consequential upon that on that date.
On or about 3 February 2023 the applicant filed an application for an order under s 59 of the ADR Act and s 64 of the NCAT Act that sought to prohibit the disclosure of his evidence to the Agency's witnesses on the ground that this would constitute a breach of his privacy. That application was listed before the Tribunal, differently constituted, on 7 February 2023. The Tribunal refused to make any order under s 64 of the NCAT and appears to have concluded that the application insofar as it referred to s 59 of the ADR Act was misconceived (that section only applies in relation to an agency's s 58 obligation to lodge material with the Tribunal).
However, the Tribunal noted that the Agency provided an undertaking that prior to providing potential witnesses with the Applicant's personal information, those witnesses would be given material explaining their obligations under the PPIP Act.
The application came before the Tribunal, as constituted on 7 February 2023 on 8 March 2022 for further Directions. At that listing the Tribunal accepted an 'undertaking' tendered by the Agency and extended the time for the filing and exchange of the parties' evidence.

Non-publication order

At the first Case Conference conducted, by the Tribunal differently constituted, in the first application on 24 January 2022 a non-publication order was made pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) prohibiting the publication of the Applicant's name. He was subsequently assigned the pseudonym "FGJ".
At the first Case Conference conducted in the second application by the Tribunal, differently constituted, on 19 April 2022 a non-publication order was made pursuant to s 64(1)(a) of the NCAT Act prohibiting the disclosure of the Applicant's name. He was subsequently assigned the pseudonym "FHY".
These orders continue in force. I have not redetermined these issues.

Adjournment applications

On or about 20 March 2023 the Applicant filed an application for a further extension of time in which to file and exchange his evidence and for an adjournment of the hearing set down for 3 and 4 April 2023 (first adjournment application). That application was dealt with by the Tribunal, differently constituted, on 20 March 2023. The request for an adjournment (and by implication for a further extension of time in which to file evidence) was refused.
In its written reasons published with that decision the Tribunal referred to the length of time the applications had been before the Tribunal, the vacation of the 2 February 2023 listing due to the Applicant's non-compliance with directions, and what it viewed as the unsatisfactory medical evidence that the Applicant had offered in support of his applications for extension of time and adjournment. In this respect the Tribunal held that this medical evidence did not meet the requirements set out in Hagh v Kong [2014] NSWCATAP 47 at [12] which adopted what the Court of Appeal had said in AHB v NSW Trustee and Guardian [2014] NSWCA 40 at [4] ("the Court will not ordinarily act on … a formulaic document [being a medical certificate] and will require an explanation on oath from the medical practitioner of the illness and the reasons for the applicant's inability to attend Court").
After receiving notice of the Tribunal's decision of 20 March 2023, the Applicant notified the Tribunal and the Agency that he would not be attending the hearing or producing submissions due to his psychological condition. He requested an extension of time in which to file further medical evidence in support of his adjournment application. This communication was dealt with in chambers by the Tribunal, differently constituted, which determined to treat it as a fresh adjournment application (the second adjournment application). Directions were given to the parties which enabled the Applicant to file evidence in support of the application and to file and exchange submissions.
These directions resulted in the applicant filing a medical certificate (letter) written by his General Practitioner dated 29 March 2023. In that letter the General Practitioner opined that the applicant 'is not in a state of mind that he is able to cope with the stressors associated with preparing or responding to complex legal submissions or emotionally confronting situations such as … cross-examination …"
The second adjournment application was determined by the Tribunal, differently constituted, in Chambers, on 31 March 2023 (the Friday before the Monday and Tuesday listing of the substantive application). The Tribunal refused the application and published short reasons for its decision. In short summary, the Tribunal was not satisfied that the medical evidence was sufficiently probative of the Applicant's medical condition and of why that condition prevented the Applicant from participating in the hearing. The Tribunal also noted that the proceedings were administrative review proceedings initiated by the Applicant which were not adversarial in nature, neither of which appeared to have been appreciated by the Applicant's General Practitioner at the time she composed the letter.

Material considered

In reaching my determination I have considered the following material:

Applicant 1. Bundle of material marked "FGJ" filed on 2 February 2023, 2. submissions filed 4 April 2023, 3. submissions dated 17 May 2023 filed on 26 May 2023.

Agency 1. Notice of decision on remitted privacy complaint dated 30 June 2022, 2. s 58 Bundle filed on 25 October 2022, 3. 'Statement of Evidence - Corey Jones' dated 24 February 2023 and annexures, filed on 2 March 2023, 4. submissions filed on 28 March 2023 (under cover of letter dated 24 March 2023), 5. "Respondent's Bundle of Legislation" filed on 28 March 2023 (under cover of letter dated 24 March 2023), 6. "Service Approval" dated 4 September 2012 issued to [redacted] OOSH by NSW Department of Education and Communities under s 48 of the Children (Education and Care Services) National Law (NSW), 7. submissions in reply dated 30 May 2023, 8. Deed of Release between Applicant and Cumberland City Council dated 25 August 2020.

Applicant 1. Bundles of materials marked "FHY" "1", "2" and "3" filed on 2 February 2023, 2. submissions filed 4 April 2023, 3. submissions dated17 May 2023 filed on 26 May 2023.

Agency 1. Notice of decision on remitted privacy complaint dated 17 June 2022, 2. s 58 Bundle filed on 7 November 2023, 3. 'Statement of Evidence - Corey Jones' dated 24 February 2023 and annexures, 4. submissions filed on 28 March 2023 (under cover of letter dated 24 March 2023), 5. "Respondent's Bundle of Legislation" filed on 28 March 2023 (under cover of letter dated 24 March 2023), 6. "Service Approval" dated 4 September 2012 issued to [redacted] OOSH by NSW Department of Education and Communities under s 48 of the Children (Education and Care Services) National Law (NSW), 7. submissions in reply dated 30 May 2023, 8. Deed of Release between Applicant and Cumberland City Council dated 25 August 2020.

The hearing

The hearing proceeded on 3 April 2023. The Applicant appeared via AVL. The Agency was represented at the hearing by Mr C McFadzean, General Counsel. The Agency called as a witness Mr Corey Jones, the Agency's Manager, Strategy and Improvement who gave evidence under a solemn promise to tell the truth. The parties had the opportunity to present their respective cases, to ask questions of Mr Jones and the Applicant (subject to what I say following) and to make post hearing submissions to the Tribunal.
At the outset of the hearing the Applicant stated that he was participating in the hearing 'under protest and duress' as a result of the Tribunal's refusal of his adjournment applications. He sought to renew his application for an adjournment, but in circumstances where he was present and interacting with the Tribunal and could offer no additional medical information that would support his request, I declined to entertain that application. I did however indicate to the Applicant that I would attempt to provide him with any reasonable adjustment he requested of me during the hearing to assist him to participate.
The Agency's presentation of its case, including the presentation and cross-examination of its witness by the Applicant proceeded without any difficulty from an objective point of view. However, on the second day of the hearing when it came to the presentation of the Applicant's case, and his cross-examination by the Agency's representative, the Applicant became increasingly agitated.
Just prior to the luncheon adjournment, at approximately 12:30pm, the Agency's representative sought to present to the Applicant in cross-examination a Deed of Release he had signed with the Agency. This caused the Applicant to flare, and he terminated his AVL connection to the hearing. After waiting to see if the Applicant would return to the hearing, I adjourned the hearing for the luncheon break until 1:30pm and directed the Registrar to notify the Applicant that the hearing would resume by AVL at that time. The Applicant did not appear at 1:30pm and he had still not appeared by 1:40pm.
Upon the resumption of the hearing the Agency's representative advised the Tribunal that the Applicant was still required for cross-examination. Upon consideration, and out of an abundance of caution, I adjourned the hearing until 3 May 2023 to provide the Applicant with a further opportunity to present himself to complete his cross-examination. In doing so, I gave the following directions and reasons: (1) The hearing is adjourned to 10am 3 May 2023 in person at [hearing venue] The Tribunal notes that the respondent continues to require the applicant to complete its cross-examination. (2) The applicant …. is to notify the Deputy Divisional Registrar in writing by 14 April 2023 if he intends to make himself available on 3 May 2023 to complete his cross-examination. (3) The applicant is granted leave to appear at the hearing on 3 May 2023 by AVL. Reasons The hearing was adjourned at 12:30pm on 4 April 2023 because the applicant left the AVL link during his cross-examination by the respondent's representative. The Deputy Divisional Registrar notified the parties by electronic notice to their email addresses that the hearing would resume at 1:30m. The applicant did not appear by AVL at 1:30pm. The resumption of the hearing was delayed to 1:40pm to allow the applicant further time to appear, but he did not appear. The hearing resumed. The respondent's representative advised the Tribunal that it continued to require the applicant for cross-examination. The failure of a witness to make themselves available for cross-examination potentially affects the weight that can be given to their evidence. The Tribunal put the applicant on notice of this when he raised an objection to being questioned by the respondent's representative at the end of the hearing on 3 April 2023 and at the resumption of the hearing on 4 April 2023. Having regard to these matters, and out of an abundance of caution, I determined that the applicant ought, as a matter of procedural fairness both to him and the respondent, be given the opportunity to complete his cross-examination. I therefore adjourned the hearing on that basis. After the hearing was adjourned, the Deputy Divisional Registrar received email correspondence from the applicant in which he requests that any "further submissions/correspondence in these proceedings … be done in writing". While a request to make any further submissions in writing can be accommodated, cross-examination cannot be conducted in this way. The witness must be available in person to be asked questions. It is a matter for the applicant if he is prepared to make himself available to complete his cross-examination. He is given time to reflect on his position. He must notify the Deputy Divisional Registrar by 14 April 2023 if he intends to appear at the hearing now set down for 3 May 2023. If the applicant advises that he will be available on that date for cross-examination that hearing will proceed. If the applicant advises that he will not be available to complete his cross-examination on that date the hearing date will be vacated. Directions will then be made for the filing and exchange of final submissions. After receipt of any such submissions, the Tribunal will proceed to determine both matters on the material before it.
The Applicant did not notify the Deputy Divisional Registrar by 14 April 2023 as directed whether he intended to participate in the resumed hearing to complete his cross-examination.
On 27 April 2023 the Deputy Divisional Registrar issued hearing notices to the parties for the hearing set down on 3 May 2023. That prompted the following email communication from the Applicant to the Tribunal and Agency: … Orders on 4-5 April 2023 were made that if I intended to attend the proposed hearing on 3 May, I should advise the Registry. I didn't advise the registry, because I do not currently intend on appearing at the proposed hearing. The reasons I do not intend on appearing were communicated in written correspondence to the Tribunal on [in support of adjournment applications prior to and at the 3 and 4 April 2023 hearing]. Additionally, on 3 and 4 April at the hearing, I advised the member numerous times of my health concerns being exacerbated by the hearing and cross-examination. Mr McFadzean asked me numerous questions under cross-examination which held no apparent relevance to my statement of evidence, or any legal submissions or any other witness statements. I objected to the premise of these questions. For whatever reason, Mr McFazdean was permitted to continue asking me questions that had nothing to do with my statement and outside the realm of my expertise. I do not think it was appropriate for me to answer those questions for those reasons. Mr McFadzean then began asking me questions about a "deed" - a document that was not submitted in evidence, or referred to in any legal submissions or statements from either party. I communicated to the member numerous times that Mr McFadzean was abusing the cross-examination process in order to permit himself to submit new (late) evidence, long after evidence was due. Mr McFazdean did not, and has still not, identified the relevance of the "deed" to these proceedings. If Mr McFadzean considered the deed to be relevant, he failed to explain why he did not submit the deed to myself or the Tribunal by the timeline established by the Tribunal, rather than on the day of the hearing. I tried to explain that it was procedurally unfair for Mr McFadzean - a lawyer involved in the proceedings for years - to submit late evidence on the day of the hearing. I gave up on getting a procedurally fair go and the hearing, and left the hearing. I do not believe my procedural fairness concerns have been dealt with since then. I have no intention to go against medical advice and subject myself to further trauma and heartache by attending another hearing without preventative measures to accommodate for my mental health injury. I shouldn't be procedurally disadvantaged because of my injury. Yesterday I received the Virtual Hearing Details - as if the hearing will continue though I did not advise the Registry that I intended to attend. If the Tribunal can resolve my concerns before 3 May, I may consider attending, however at this point in time, there is nothing that gives me confidence that any of my procedural concerns have been resolved at this stage. …
Having regard to the Applicant's communication, on 2 May 2023 I directed the Registrar to issue the following directions to the parties: 1 The applicant has advised that he does not intend to appear at the hearing on 3 May 2023 to complete cross-examination. The hearing will therefore proceed on the following basis: (1) The respondent should attend the hearing to present its final submissions in relation to the applications. (2) The applicant may attend the hearing to present his final submissions in relation to the applications. If he does not attend, he may give to the Tribunal and the respondent any final written submissions by 16 May 2023. (3) If the applicant elects to file a final written submission, the respondent may give to the Tribunal and the applicant any submission strictly in reply by 23 May 2023. The Tribunal notes that the applicant has been granted leave to attend the hearing by AVL.
At 1:05pm on 3 May 2023 the Applicant sent an email to the Registry advising that he did not attend the hearing due to his psychological injury and because he had only just woken up after taking sleeping medication in the early morning. He stated that he intended to obtain an audio recording of the hearing and to make written submissions in accordance with my 2 May 2023 directions.
By email to the Registrar dated 15 May 2023 the Applicant sought an extension of time in which to comply with direction 1(2) to 23 May 2023 on the basis that he was still awaiting a copy of the 3 May 2023 hearing recording. I granted the extension of time on that basis, also extending time for the respondent to comply with direction 1(3) to 30 May 2023.
On 17 October 2023 the Applicant sent an email to the Registry (copied to the Agency's representative) which sought, in effect, to re-open the proceedings. In his email the Applicant stated the following: … Please forward this correspondence onto Senior Member French regarding Privacy proceedings 2021/356513 (FGJ v Cumberland Council). His decision on this matter is pending. In these proceedings, a summons was issued to Council on 6 May 2022 for: "Any and all instructions from Cumberland Council (including Cumberland Council's lawyer/agent/associate(s)) to O'Connell Group regarding an investigation into allegations against Ms Z, Ms A and [the Applicant]". In Council's written response to the summons stated 18 May 2022, Council provided a list of 12 documents responsive to the summons. Council's letter of instructions to O'Connell group dated 2 May 2017 to 'consider' the FACS letter was omitted from Council's response to the summons. This document is forensically necessary in terms of the 'purpose' my personal information was collected, used and disclosed by Council via the O'Connell group "investigation". Multiple IPPs relate specifically to the 'purpose' of personal information. The 'purpose' of the O'Connell group investigation remains under contention between the parties. I recall pressing for this document in these proceedings during cross-examination, confused about its absence in evidence. Council's submissions led myself and the Tribunal to believe such a document did not exist or could not be found. On 4 October 2023, in proceedings of a very similar nature [case no. cited] in response to another summons, Council produced "Document B" which is the letter of instructions from Council to O'Connell Group which was withheld from the Tribunal and myself in proceedings 2021/365513. Council's late production of "document B" in proceedings [case no. cited] appears to me to be evidence of contempt of the Tribunal in terms of an 'omission' from a summons application in proceedings 2021/356513 (CAT Act s 73(2).). I will leave that issue for the Tribunal to determine. I submit that the Tribunal should therefore order Council to present the missing document responsive to the summons in matter 2021/356513 so that Senior Member French is fully informed in his decision making process in these proceedings.
This request was referred to me in chambers. I instructed Registry to advise the Applicant that the hearing of the first application had been completed, a decision was reserved and that no leave had been granted for the post-hearing filing of submissions and additional evidence. Registry communicated that information to the Applicant and the Agency on 3 November 2023.
On 6 November 2023 the Applicant filed an Application for miscellaneous matters in 2021/356513 in which he reagitated that request.
In the sections of the application form which required the applicant to set out 'the orders sought' and the 'grounds for the application' the following is stated: 3. Orders sought Leave is granted for the parties to make submissions on the issue of the missing document responsive to the summons in matter 2021/35613 and possible contempt of the Tribunal as per applicants email submitted to the Tribunal on 17 October 2023. 4. Grounds for application The missing document was only provided to the applicant recently, months after the hearing. The document should have been provided to the Tribunal in s. 58 documents and it wasn't. The document should have been provided to the Tribunal in response to a summons. It wasn't. There is a likelihood that Council's omission could be considered contempt of the Tribunal. The document is not currently filed with the Tribunal in these proceedings. The document is reasonably necessary for the member to make an informed decision on the alleged privacy breach to the "purpose" of the O'Connell Group investigation. A matter of contention in these proceedings. If the Tribunal does not adequately consider this document in these proceedings, I may lodge an appeal on that basis.
That application was referred to me in Chambers on 4 December 2023. After considering the matter, on 5 December 2023, I again refused the Applicant's request to re-open the proceedings.
To the extent that the Applicant's Application for miscellaneous matters asked the Tribunal to deal with the matter by way of a contempt proceeding under s 73 of the NCAT Act, the Tribunal, as presently constituted, has no power to do so. That is because s 27(2) of the NCAT Act provides that in proceedings for contempt the Tribunal must be constituted either by the President or another member who is a current or former NSW Judicial Officer. I do not hold any such office. In this respect I note that the Registrar advised the Applicant the steps to take if he wished to pursue an application alleging the Agency is in contempt.
To the extent that the Applicant's Application for miscellaneous matters sought to re-open the proceedings, permit the filing of additional evidence being a "letter of instruction dated 2 May 2017" issued by the Agency to O'Connell Group, and potentially allow further oral argument in relation to that document, I determined to refuse this request as a matter of discretion.
As I have set out above, in the early stages of these proceedings there were contests determined by the Tribunal, differently constituted, in relation to summons issued by the Applicant to the Agency and in relation to an application under s 59 of the NCAT Act in relation to the documents the Agency was obliged to produce under s 58 of the NCAT Act. In his email to the Registry dated 17 October 2023 the Applicant refers to a summons issued at his initiative on 6 May 2023. However, that was not the only summons issued on the Agency on the initiative of the Applicant.
Under cover of letter dated 10 November 2022 the Agency lodged documents with the Tribunal which it considered were responsive to the summons filed by the Applicant on 23 September 2022 and issued shortly thereafter. Item 2 on the summons schedule was described as follows: 2. Provide a copy of any correspondence from Council to O'Connell Group which requested/instructed the O'Connell Group to 'consider' the FACS letter in their investigations.
The Agency's covering letter to the documents produced includes table which incorporates a description of the various documents, their date, 'summons item', their locations in the redacted and unredacted folios before the Tribunal as they stood at that time and a notation indicating whether the Agency 'consents or objects to release'.
The schedule includes 'document number' "14", which is described as an 'email from Mr T of Council to O'Connell Group re FACS letter' dated '2 May 2017', which the Agency considered responsive to 'item 2' of the summons schedule, and which appeared at pages 307-309 of the unredacted, and 310-312 of the redacted folios. The Agency noted an objection to the release of that document 'in part'.
The Agency's objections to the release of the documents produced under summons was dealt with by the Tribunal, differently constituted, on 18 October 2022. Order 6 of the orders made at that hearing directed that various 'documents [were] approved for release in the form identified below'. They included: 'Doc 14 as identified in folios 310-317' (sic 312).
Having regard to this I am not satisfied that the Applicant only became aware of this document in October 2023, or that it could not have been the subject of argument or submission at the hearing. It is, in any event, before the Tribunal, if not in the Applicant's evidence, because it is material captured by s 58 of the ADR Act, and it can be considered in my disposition of these applications.
As I have set out above, a Tribunal, differently constituted, specifically noted in the directions made in these proceedings on 1 December 2022 that "[t]he parties note and agree that the pre-hearing discovery processes (concerning s 58 and 59 of the ADR Act, and the summons objections) are now finalised".
Section 38(5)(c) of the NCAT Act requires the Tribunal to take such measures as are reasonably practicable to ensure that parties have a reasonable opportunity to be heard or otherwise have their submissions considered in proceedings. Having regard to the elongated nature of these proceedings, the several opportunities the Applicant has had to file evidence and submissions and participate in oral hearings in relation to these applications, I am satisfied he has been afforded that reasonable opportunity.
In summary, having regard to the above and the principles distilled in Reid v Brett [2005] VSC 18 at [41] I was not satisfied that it would have been an appropriate exercise of discretion to grant leave to the Applicant to re-open the proceedings. The communication the Applicant refers to is already in the material before the Tribunal, he has had the opportunity to make submissions in relation to it, and for the reasons set out following, closer consideration of it would not affect the result of the case. Allowing the case to reopen would have further elongated these proceedings and added to the public and party/party costs of finalising them. That was not in the interests of justice.

The Applicant's objections to his cross-examination

I have set out above the Applicant's objections to his cross-examination by the Agency's representative Mr McFadzean. It was clear that the Applicant found his cross-examination very challenging. He did object to being cross examined, objected to various questions, and tended to be argumentative and unresponsive. The record will show that these issues were dealt with at the hearing during the Applicant's (incomplete) cross examination. I will therefore only make the following general points in response to what the Applicant complains about in the submission outlined at paragraph 37: 1. the Applicant was a witness in his own cause in the proceedings. His case is based on various factual assertions and opinions. In those circumstances, as a matter of fairness, the Agency is entitled to ask him questions to test that evidence: see for example, Morgan v Shardlan Pty Ltd as Trustee for the Stumar Family Trust t/as Carpet One and Blinds Wagga Wagga [2018] NSWCATAP 123 at [21]; Gallo v Duflou [2014] NSWCATAP 115 at [21], 2. cross-examination is often stressful for any witness, and I accept that it was particularly stressful for the Applicant. However, the Applicant's cross examination was conducted with civility and patience. He may have found it subjectively threatening, but objectively that was not the case, 3. the Applicant was entitled to challenge questions put to him on various grounds, including relevance. I ruled on those objections when raised. Subject to that it is not for a party or witness to dictate to the Tribunal what is relevant in administrative review proceedings. That is a matter for the Tribunal to determine for itself, albeit with the assistance of the parties, 4. the role of a witness in cross examination is simply to answer questions put to them truthfully and to the best of their ability. It is important that a question does not mislead or confuse, but leaving that aside it does not fall to cross examinator to explain to the witness why he (in this case) is asking the question and how it is relevant to the Agency's case, 5. the Agency was entitled to put the Deed of Release to the Applicant in cross-examination. The remedy sought by the Applicant in both proceedings included a claim for damages for psychological injury. He gave evidence to the existence of that psychological injury. In that context it was not improper for the agency to attempt to put to him that he had settled all claims of this nature with the Agency. If it did not do so there may have been an argument that it has failed to comply with the rule in Brown v Dunne (1893) 6 R 61. The Applicant may have wished to avoid exposure of the Deed of Release in the proceedings, but it is clearly a relevant document, and the Applicant could not be taken by surprise by it because he is a signature to it.

Material facts

The Agency is a "public sector agency" to which the PPIP Act applies pursuant to s 20 of that Act because it is a "local government authority" within the meaning of paragraph (f) of the definition of that term contained in s 3 of that Act. The term "local government authority" is defined in s 3 to mean, relevantly, a "council" within the meaning of the Local Government Act 1993 (NSW) (LG Act). The Agency is a council constituted under Part 9 of the LG Act.
At the material time for this dispute the Applicant had worked in children and youth services in a variety of roles for various employers for more than 17 years. Between April 2016 up to 16 December 2016 he was employed on a casual basis as a children's educator/Acting Director of one the Agency's Out of School Hours Children's Services (which I will identify only as the "OOSH Service"). He held a Working with 'Children Check Clearance' issued under the provisions of the Child Protection (Working with Children) Act 2012 (NSW) which enabled him to engage in this work.
The OOSH Service is one of various children's services operated by the Agency.
At the material time for this dispute, Ms Z was the Agency's Group Manager, Children's Services. Ms C was the Agency's Business Administration Facilitator. Ms A was the Agency's Group Leader Human Resources. Ms K was a co-worker with the Applicant at the OOSH Service. Mr T was the Agency's Manager, Executive Support.
On or about 7 October 2016 whilst the Applicant was working on shift at the OOSH Service he received a telephone call from Ms Z notifying him that the Agency had received information alleging that he had engaged in inappropriate conduct towards children and that he was to leave work immediately pending the investigation of that allegation. It later transpired that these allegations had been made by Ms K.
By undated letter to the Applicant received by the Applicant on or about 7 October 2016, the then General Manager of the Agency wrote to the Applicant to notify him that the Agency had convened a meeting on 12 October 2016 that he was required to attend to discuss an "allegation made against you in relation to inappropriate physical contact with children". The Applicant was notified that this meeting would be 'facilitated' by Ms Z and Ms C.
That meeting took place as planned. There was a discussion of four allegations of conduct involving children, 3 of which involved some form of physical conduct with children which the Agency's representatives considered inappropriate. Minutes of the meeting were produced on or about 18 October 2016. The minutes include a "summary of discussion" in which the following is stated under the heading "child protection allegation": Child Protection Allegation [FHY] was reminded that it is important for him to protect himself from awkward or inappropriate situations. He needs to be aware of how interactions with children can be perceived by other staff, children or parents. Always maintain professional interactions with staff and children. Talking to children about appropriate personal space. Talking to children about what is socially acceptable.
At the end of the minutes there is a heading "action required". FHY was required to read through the Agency's mobile phone policy, code of conduct, child protection policy and staff handbook, among other matters not presently relevant. The minutes also record that a follow-up meeting was scheduled for 13 November 2016.
By letter dated 17 October 2016 the Agency's General Manager confirmed the outcomes of the 12 October 2016 meeting. That letter sets out the Applicant's alleged inappropriate conduct, his response to those allegations, the actions the Agency required of the Applicant, and the support the Agency would offer the Applicant to improve his performance. It includes the following statements: … As discussed at the interview, Council requires that you now adhere to Council's Mobile Phone Policy and Code of Conduct, ensure all your gestures and comments are appropriate and respectful when working with children and other educators. … Repetition of this action or failure to improve may result in disciplinary action that could ultimately lead to termination of your employment. You are requested to return to work on Tuesday 18 October 2016. Your work performance will be monitored and reviewed on 20 November 2016. This interview conducted on 12 October 2016 and this letter constitutes an initial warning in terms of the Disciplinary Procedures Clause of the Local Government (State) Award 2014. A copy of this record will be placed on Council's Child Protection file …
The Applicant resumed his duties as Acting Director of the OOSH Service on 18 October 2016 as directed.
Following receipt of the minutes and the Agency's letter of 17 October 2016 the Applicant corresponded with Ms Z and Ms C expressing concern about the level of detail he had been provided in relation to the incidents of alleged inappropriate behaviour and that the issues had not been raised with him first by Ms K in accordance with the procedure specified in the Agency's grievance policy.
The 'follow-up meeting" between the Applicant, Ms Z and Ms C which had originally been scheduled for 20 November 2016 was in fact conducted on 15 December 2016. At that meeting Ms Z and Ms C advised the Applicant that further complaints had been received about his interactions with children.
A written summary of the meeting was recorded by Ms Z or Ms C in the form of "notes/record of meeting". Beside the heading "topic" are the words "child protection allegation - follow-up meeting". The further allegations are set out, along with the Applicant's responses to them. The notes then go on to state the following: Ms C advised [FHY] that he needs to be very careful about the things he says in front of staff, parents and children, he needs to be professional at all times and that things he may say at home, should not be said at work in front of children. Ms C said that he needs to be aware of the things being said, as he may not mean for something to be taken a certain way, but he cannot assume how someone else is going to feel about his comments and actions. … Ms C reassured [FHY] that the notifications that have been made have only been given to her and are not discussed throughout the group. Ms C said Ms Z and herself have maintained confidentiality regarding the whole investigation. … Ms C explained to [FHY] that as there had been several incidences reported recently and there appeared to be a pattern of behaviour that we would request that [FHY] return to the casual list from 30 January 2017. [FHY's] performance will continue to be monitored whilst on the casual list. Ms C confirmed with [FHY] that he had requested not to work during the Dec/Jan School Holiday period.
Following this meeting the Applicant corresponded with Ms Z and Ms C by email expressing concerns about the 'topic' heading recorded on the 'notes/record of meeting', that the complaints had not been raised with him directly at the time of the alleged incidents, and about his removal to the 'casual list' from the role of Acting Director of the OOSH Service.
By email dated 18 January 2017, Ms Z responded to the Applicant's email as follows: The incidences raised by staff were not allegations, they were concerns that were raised to me. We received concerns raised by staff at different times, and then Guiding Principles and the Code of Conduct is used to discuss, develop and remind staff of their professionalism and expected behaviour. This can be completed with Centre Directors or anyone from the Children's Services Senior Admin Team. As issues were previously raised with you, Ms C and I mentioned the concerns to you in the follow-up meeting. As discussed in the meeting, the decision to no longer higher grade duty/pay you into the position of Centre Director was not based on the issues raised, the decision was based on the return of Centre Directors from maternity leave. Staff have informed me that at times they did express concerns to you directly … [one incident] was observed from a distance and therefore the staff did not address the issue with you directly - however as an Acting Centre Director it would be expected that your manner would be professional at all times.
The Applicant did not accept Ms Z's response. He emailed her again expressing concern that the 15 December 2016 meeting notes/record of meeting referred to 'child protection allegations', whereas her 18 January 2017 email stated that these matters were not allegations, but 'concerns', denying any discussion about him needing to return to the casual pool due to Director level staff returning from maternity leave, and asking for further details about the complaints. He elaborated on and extended these complaints in a letter to Ms Z and Ms C dated 30 January 2017.
That letter led to the Agency initiating a meeting between Ms Z, Ms A and the Applicant on 10 February 2017. The Applicant prepared what he describes as a 'transcript of that meeting which is in his evidence. That document records the following: 5. I said … I would probably only need a support person if I was either getting fired or if there were now allegations/complaints against me. 6. [Ms A] interjected 'Let me just stop you there ...' she said I would not be fired. She insisted that casuals won't get fired. Casuals sit on the waiting list and if inactive for 6 months will be removed from the casual list. 7. [Ms A] stated that no new complaints had been made against me. 8. I asked if [Ms Z] or [Ms A] had an agenda for this meeting as I had requested in my earlier email, but had no response. 9. [Ms Z] said: 'You called for the meeting, so no'. 10. I said I would like to spend this time going through my letter. 11. Melissa said: 'What is it that you are hoping to achieve?' 12. I read from my letter to [Ms Z] stating that I was hoping to "clear my name and return to a fun and safe and healthy working environment." 13. [Ms A] said: 'I don't know why we are even here, this is resolved. We don't have anything to say to you. You are not fired, but there is no work available for you at the moment. We have completed our investigation and your name has been cleared. We do not intend to take any further action on this matter."
The Applicant contends that despite being told at the start of the meeting that 'no new complaints' had been received, [Ms A] did bring up another complaint which did not relate to conduct towards children which he had not previously received notice of.
At his request, the Applicant met with Ms C, the Agency's Director of Human Resources on 14 February 2017 to discuss his concerns about the management of his employment by Ms Z and Ms C.
By letter from Ms Z dated 22 February 2017 the Agency sought to confirm the outcome of the 10 February 2017 meeting from its perspective. That letter includes the following statements: … The meeting was held at your request to clarify the status of your employment and the work performance issues that had been raised. As you were advised, your employment with Cumberland Council is a casual position and therefore you will only be contacted for work if our resourcing requirements deem this necessary. As outlined to you during this meeting, due to the return of a number of employees from maternity leave, at this stage, we do not have any vacant shifts to offer you. … In addition to the position [of Director, the OOSH Service] no longer being vacant, there was a pattern of inappropriate behaviour and an allegation of reportable conduct that was investigated and found to be unsubstantiated. The investigation found that your comments and actions in some cases were inappropriate, but we felt that we could continue to monitor your performance as a casual employee. … It has been reported that after this meeting you contacted a number of Centre Directors and also visited a Council centre. The staff involved have reported that you contacted them asking about the possibility of ongoing work with council and whether or not casual shifts would be available to you in the near future. Please be advised that you are not to contact the Centre Directors or other staff at Council's children's centres again in the future. Also, you are not permitted to visit council's children's centres unless you are contacted regarding your availability for further casual shifts. If work is available for you in the future, the Centre Directors will contact you to discuss this. Your work performance will be monitored and reviewed depending upon the availability of casual work. You also met with Ms C, Manager Human Resource Services, and requested a letter indicating that the investigation was finalised and also a statement of service. The statement of service has been sent to you and I can confirm, as stated in our meeting, that the investigation into the allegations was found to be unsubstantiated and there was no notifiable conduct proven. The investigation into the inappropriate behaviour found that your comments and actions in some cases were inappropriate but we felt that we could continue to monitor your performance as a casual employee. Further, at the meeting with Ms C you requested that: You would like to leave the centre on a positive note with a farewell with kids and parents: as you are still on the casual list a farewell is not required, as you may return for further shifts in the future. …
On 24 February 2017 the Applicant wrote to Ms C by email setting out several objections to the statements made by Ms Z in her letter dated 22 February 2017. He expressed the view that he had grounds to make an official complaint of workplace harassment and or bullying by Ms Z and Ms C. In response to that email Ms C invited the Applicant to submit to her any questions he had regarding the management of the conduct complaints that had been made against him and his employment which she would pass on to Ms Z for response.
The Applicant provided Ms C with a 6 page letter setting out questions and objections in relation to the management of the conduct complaints and his employment on 5 March 2017. Ms C provided that letter to Ms Z for response as agreed.
Ms Z replied to the Applicant's letter of 5 March 2017 in a letter dated 19 March 2017. The letter includes the following statements: … You raised the following questions: 1. Please identify what the 'allegation of reportable conduct' was as mentioned in Ms Z's letter. A complaint was received alleging that you had positioned yourself with a child in an inappropriate way. This is an allegation of reportable conduct and it was investigated. You were notified on this complaint and given a right of reply. … 5. Ms Z states that she has decided not to offer additional information requested [about the conduct complaints] as 'my employment with Council was unlikely to continue in the short to medium term…' … - Why is Ms Z using my current working situation as a reason not to resolve these complaints raised by Ms K … - Is Ms Z saying that since I am not working anyway, I don't need to understand why Ms K was complaining about me? There were a number of complaints, all have been addressed with you and from council's perspective, none of these complaints remain unresolved. - Is Ms Z saying that since I am not working I don't need to know that strategies are being put in place to ensure these false complaints aren't going to be dealt with appropriately now or in the future? (sic) Cumberland Council has policies and procedures that cover all employees the complaints against you have been investigated and at this time have been unsubstantiated but with the pattern of behaviour that you are presenting there is concern… … MOVING FORWARD … 5. Please advise what the appropriate process is to make a complaint - considering Ms A has already participated defensively in this debacle and has shown conflict of interest in resolving it objectively. From council's perspective, the Group Manager Human Resources has provided you with the information you requested and has responded adequately to the concerns you have raised. Whilst you might not be in agreement with the response, Ms A's role is to provide you with objective information about your particular circumstances. This has now been provided to you on a number of occasions, and so as far as council is concerned, this matter is now resolved. There is no further information and no different responses that council can provide you with. … In view of all of this Council will not be responding to any further complaints you raise in relation to matters already addressed.
Following receipt of Ms Z's letter of 19 March 2017, by letter dated 30 March 2017 sent by email dated 4 April 2017, the Applicant wrote to the Agency's General Manager to lodge a complaint alleging that Ms Z and Ms A had engaged in bullying and harassment of him during his employment. This is a 16 page letter with various annexures up to 103 pages, the contents of which may be gleaned from the following sub-headings the Applicant used to structure his complaint: 'gossip framed as complaints', 'misunderstandings between [Ms K] and myself', 'failure to provide adequate information or training', 'false expectations for casual work', 'no preventative measures … taken to address the harassment', '[failure] to follow Council's grievance procedure policy', 'my alienation from Council staff and employment', 'farewell denied', 'access denied', 'recognition denied', 'payment and future work denied'.
In the covering email to this complaint the Applicant states: … I am writing to you to request a formal investigation into bullying and harassment from senior staff at Cumberland Council's Children's Services as per the Council Grievance Procedure Policy. I am also advising you that I would like to be removed from the CCCS casual list/employment due to the inability/unwillingness of Council staff to resolve this issue. …
On or about 5 April 2017 the Agency engaged O'Connell Workplace Relations (OWR) to investigate the Applicant's bullying and harassment complaint on its behalf. By letter sent by email on 25 April 2017 OWR confirmed arrangements to interview the Applicant the following day (26 April 2017) at 3pm. The first paragraph of that letter states as follows: As discussed the other day when we called you, O'Connell Workplace Relations has been requested by Cumberland Council to conduct an independent external investigation into the allegations set out in your detailed complaint dated 30 March 2017. …
On 12 April 2017 an unidentified person made a report to the NSW Government's Child Protection Hotline which made allegations that the Applicant had engaged in conduct at the OOSH Service which involved a serious risk of harm to children (the notification). On that date the Applicant had not been at work at that Service since 16 December 2016, 4 months earlier.
By letter dated 18 April 2017 a Manager Casework, Triage and Assessment at NSW Department of Community Services' Auburn Community Services wrote to the then Director of the OOSH Service to inform her/him of the receipt of this risk of harm report (the FaCS letter). The letter includes a statement that the Applicant had been 'terminated due to his inappropriate behaviour towards students at the centre' and that 'he also has not further involvement with the children's reading program'. It also states: As you will be aware, you have a responsibility to report this information to the Office of the NSW Ombudsman and should do so within 30 days (if the allegation is determined to be notifiable/reportable conduct). At this time, Auburn FACS does not propose to conduct any further investigation or assessment from a child protection perspective in relation to the specific children mentioned.
By email dated 2 May 2017, the Agency's Mr T referred a copy of the FaCS letter to OWR "to consider" in the context of its investigation of the Applicant's workplace bullying and harassment complaints, noting that the investigator would shortly be meeting with Ms Z to discuss those complaints.
The Agency did not inform the Applicant of the FaCS risk of harm notification or about the FaCS letter following its receipt. Nor did it advise the Applicant that the OWR investigation of his workplace bullying and harassment complaints was extended to include consideration of the FaCS letter on 2 May 2017 (after his interview with OWR had been completed). He did not learn about any of this until 2018 (as to which see following).
By letter to the Applicant dated 16 June 2017, the Agency's Mr T wrote to the Applicant to advise him of the "key outcomes" of OWR's investigation of his complaints. In short summary, he advised that OWR had determined that the Applicant's complaints were not substantiated. It found that the steps taken by Council management, including Ms Z and Ms A, to deal with child protection and performance issues involving the Applicant constituted reasonable management action and not bullying and harassment. Mr T advised that OWR had recommended, and the Agency had agreed, that the Applicant would not be reengaged by the Agency in any capacity.
The Applicant continued to dispute the Agency's management of the conduct complaints and his employment in correspondence to Ms C and Mr T after receipt of Mr T's letter of 16 June 2017.
At the material time for the FaCS letter the NSW Ombudsman administered the employment related child protection reportable conduct scheme (as to which see following). The reference in the FaCS letter to reporting to the NSW Ombudsman is to be understood in that context. At the time the Ombudsman had developed a "Notification Form" for reporting purposes. The following appears on the 1st page of that form: … This form is to be used for reporting a reportable allegation to the Ombudsman's Office. A reportable allegation is defined in s 25A of the Ombudsman Act. The Ombudsman Act states that a reportable allegation means either: an allegation of reportable conduct against a person …, or an allegation of misconduct that may involve reportable conduct. Part A of the notification form, relating to the details of the people involved, the allegation and the agency's initial response, is to be sent to the Ombudsman's office within 30 days of the head of agency becoming aware of the reportable allegation or conviction against an employee. If the investigation has been completed within those 30 days, please also complete Part B of the notification form, which details the findings of the investigation. Part B should be accompanied by copies of all documentation relevant to the investigation and decision making. …
On 21 July 2017 the Agency completed and submitted to the Ombudsman a Form A. The form includes information to the effect that the Applicant had not been made aware of the reportable allegation because of a 'need to make further enquiries', that it was 'unknown' if the allegation of reportable conduct involved more than 1 child, and that the 'type' of reportable conduct involved 'sexual misconduct' 'crossing professional boundaries' and 'psychological harm', 'other', 'pattern of behaviour - grooming'.
On or about 16 November 2017 the Applicant received a telephone call from the Office of the Children's Guardian (OCG) which advised him that an 'interim bar' had been placed on his Working with Children Check Clearance while that office undertook a risk assessment in relation to his suitability to work with children. The Applicant gave evidence that he was told by the OCG that the risk assessment might take up to six months to complete. The Applicant has given evidence that he was at that time working with a child or children as a live-in nanny, and that as a consequence of the bar imposed by the OCG, he was immediately obliged to cease that employment, and consequentially, became homeless. Additionally, the Applicant has given evidence that he was also working as an educator in a child-care centre and was obliged to resign from that position immediately.
Following the call from the OCG, the Applicant wrote to the Agency's Ms C and Mr T to complain about these events. In subsequent correspondence he was advised that the Agency was in the process of reporting to the NSW Ombudsman about his conduct relating to children dating to October 2016. His further enquiries of the Agency and the OCG revealed to him that OWR was conducting an 'ongoing' investigation into his 'misconduct' while employed at the OOSH Service and that the OCG was awaiting the outcome of this investigation to inform "the reports [it] currently had".
In an email to the Applicant from the OCG dated 16 January 2018 a delegate of the Children's Guardian advised the Applicant that he had been "referred for risk assessment due to a finding of misconduct while employed at Cumberland Council". In a subsequent communication the delegate advised the Applicant that the Agency had made a "finding" of "sexual misconduct" against him.
In response to email enquiries the Applicant made of the Agency, Mr T advised him in an email dated 5 February 2018: … No new submissions/allegations/complaints have been made by Council to either the NSW Ombudsman or the Children's Guardian. Council's Lawyers with Council's investigator have now completed the confidential Final Report, issued with Legal Privilege, regarding your complaint of 30 March 2017 and made it available to the two Agencies mentioned above. The Report responded to your 103 page complaint, but made no changes to the particular recommendations and information given to you by letter dated 16 June 2017. My email to you on 11 January 2018 noted that the interim bar was being maintained by the above Agencies until the Final Report was provided. It is expected that the two Agencies will now proceed to independently make a decision on the future of the interim bar. …
It was by this communication that the Applicant learned that OWR had also been engaged by the Agency to re-investigate the conduct complaints that had been made against him in 2016. As noted above, that engagement occurred following OWR's interview with him. He thus had no opportunity to respond to those complaints in the context of OWR's reinvestigation of them.
On 20 February 2018 the Agency completed and submitted to the Ombudsman a Form B. In section 2 of that Form, which is headed "Procedural Fairness" the following is stated: 2.1 Describe the allegation(s) that you put to the employee. Attach copies of all relevant documents, including correspondence, emails and records of interview with the employee. FGJ/FHY started as a casual with Cumberland Council in April 2016. In June 2016 FGJ/FHY was offered a temporary fixed term position as the Centre Director of [the] OOSH [Service]. FGJ/FHY did not accept the position, however was happy to remain as a casual at the service acting in the position of Centre Director 3 days per week. On 7 October 2016, an allegation was received and FGJ/FHY was suspended and an investigation took place, it was found that the allegation was not sustained due to the lack of any evidence of weight. In addition there were a number of reports of inappropriate behaviour made by staff and a number of performance based meetings were held with FGJ/FHY up until he ceased work as a casual on the 16 December 2016. FGJ/FHY chose not to be available during the December/January school holiday period. During January and February 2017 a number of requests were made by FGJ/FHY for detailed information about the inappropriate behaviour reported and he wanted to know why he had not been returned to the position of acting Centre Director when school resumed in 2017. He requested a meeting with HR and it was explained that he was a casual and that the position was no longer vacant. FGJ/FHY then lodged a complaint against 2 of Council's officers. Cumberland Council then engaged O'Connell Workplace Relations to investigate FGJ/FHY's lengthy complaint. This additional Part B is now being lodged as the final report has now been received under legal privilege.
In section 4 of the Form, which is headed 'Agency Findings and Reporting to the Office of the Children's Guardian' the following is stated under the heading 'summary of allegation': Due to all the circumstances listed in the attachment of the details - it is now believed that FGJ/FHY has crossed professional boundaries and has displayed a pattern of behaviour. [the attachment substantially repeats what is set out in section 2 of the Form, but adds] … In February 2017, the Ombudsman's office was contacted to clarify if the allegation and FGJ/FHY's behaviour was deemed reportable conduct. At this time, Council was advised that this was not reportable conduct. In April 2017 a letter was received at [the] OOSH [Service] from FACS that a notification had been received by their office regarding FGJ/FHY. In June 2017 the first draft of the report from O'Connell Workplace Relations was received, at this time notification was made for the unacceptable pattern of behaviour.
Further down in that section, it is stated that the 'allegation was found to be' 'sustained', that the 'category of conduct' was 'sexual misconduct' and that the matter was sent to the OCG on 28 August 2017.
On 14 March 2018 the Applicant lodged a complaint with the NSW Ombudsman about the whole of the Agency's conduct in its initial investigation of the conduct complaints made against him, OWR's investigation of his workplace bullying and harassment complaints, the Agency's (OWR's) post-employment re-investigation of his conduct which resulted in a finding of sustained sexual misconduct, and the suspension of his Working with Children Check Clearance.
At some time in March or early April 2018 an officer of the NSW Ombudsman provided some form of feedback to the Applicant in response to his complaint. That feedback prompted the Applicant to write to the Agency (Mr T) on 19 April 2018 in the following terms: … I am writing to inform you that I have submitted a complaint to the NSW Ombudsman regarding Cumberland Council's failure of procedural fairness and the consistent refusal of documents and information regarding councils investigations regarding me. I was advised by the NSW Ombudsman's office that I have a right to: 1. Understand the context of allegations made against me. 2. Be provided with the findings of investigations made regarding me. The context of concerns made against me during meetings at council on 11/09/2016, 12/10/2016 and 15/12/2016 vary significantly from the context upon which Council has submitted to the Office of the Children's Guardian on 28/08/2017. The findings of Council's notification submitted to the OCG on 28/08/2017 has not been provided to me by Council. Additionally, the findings of [OWR's] external investigation provided to the OCG do not match the findings of [OWR] in your letter to me dated 16/06/2017 or email dated 05/02/2018. You have not provided me with the final report of [OWR]. Despite your advice on 08/02/2018 that a fresh GIPA application for any further documentation is necessary, the NSW Ombudsman's office have advised me that I have a right to this information and it is Council's duty to provide information to allow me to understand the context of allegations made against me and findings of investigations made against me.
The Agency refused to provide the Applicant with any additional information, including a copy of OWR's report, which it claimed was subject to legal professional privilege.
On or about 10 July 2018 the Agency engaged an 'Internal Ombudsman Shared Service' (IOSS) which is described in correspondence from that agency to the Applicant as a 'shared service between City of Parramatta, Cumberland and Inner West Councils' to oversee a re-investigation of the conduct complaints made against him. In this respect, in an email to the Applicant of 10 July 2018 the delegate of IOSS states the following: … With regards to your matter, I note that in 2016 an investigation by Cumberland Council was initiated into an allegation of Reportable Conduct against you. During this investigation you made a complaint to the Council regarding bullying and harassment, which the Council sought to have investigated by an external investigator, O'Connell Workplace Relations. From my understanding of this matter there appears to have been some misunderstanding of scope and direction provided by the Council to the external investigator which has resulted in the investigation being reviewed by the NSW Ombudsman and their request for further details and potentially further investigation. Cumberland Council has requested that our office review this matter and provide advice as to next steps. The IOSS has engaged the services of an investigator from WISE Workplace to conduct a desktop review initially, to identify any deficiencies with the previous Cumberland Council investigation and provide advice as to what next steps are to fulfil the obligations of Council with regards to the NSW Ombudsman and a Reportable conduct allegation. Once I have the initial review from the external investigator I will be in contact with the Council to advise them of the next steps in this process. That may include the external investigator contacting you to discuss this matter with you. I anticipate having an initial report from the external investigator within 1 week. …
The context of this appears from the Applicant's letter quoted immediately above and from a much later letter to the Applicant and General Manager of the Agency from the NSW Ombudsman (himself) dated 29 March 2021 in response to a GIPA Access Application the Applicant had made to the Ombudsman. That letter states: Request for information under the Government Information (Public Access) Act 2009 I have received a request from FGJ/FHY for certain information about a matter handled some time ago by the NSW Ombudsman's Office by the former Ombudsman under the reportable conduct scheme (Scheme). As you would be aware, since 1 March 2020 the Scheme has been administered by the Children's Guardian. Information held by the Ombudsman relating to the administration of the Scheme is 'excluded information' under the Government Information (Public Access) Act 2009 (GIPA Act). This means applicants have no right under the GIPA Act to access this information. However, s 8 of the GIPA Act gives me a discretion to informally release certain information unless there is an overriding public interest against doing so. In the course of requesting information from this office, FGJ/FHY provided a redacted extract (attached) from a statement that appears to have been made by a Cumberland Council officer. The document contains assertions about the Ombudsman's role in the relevant matter. Among other things, the document states the following: Essentially, it was the Ombudsman's Office who conducted the further investigation and they reported to the OCG, who issued a bar on FGJ/FHY from working with children. Council did not change its position on a past internal investigation and we did not contact OCG. We simply acted on information presented to us and reported this to the Ombudsman's office, as required. I am writing now to both FGJ/FHY and Council to provide the following information about those assertions. I do so because I have determined that there is a public interest in FGJ/FHY being made aware of inaccuracies in the assertion above. I provide the following information: 1. At the relevant time, the Ombudsman Act 1974 formerly permitted the Ombudsman to: (a) monitor employers' handling of reportable conduct allegations (under s 25E and 25F, since repealed) and/or (b) investigate reportable conduct allegations (under s 25G, since repealed). 2. The Ombudsman did not initiate an investigation, and Ombudsman staff did not investigate, any of the allegations made in this matter under s 25G of the Ombudsman Act. 3. Ombudsman staff monitored the Council's handling of those allegations pursuant to the Ombudsman's functions under ss 25E and 25F. This monitoring involved: a) providing information to Council about its obligations under the Scheme b) assessing an investigation report conducted on behalf of and at the request of the Council into the allegations c) advising Council of issues in that initial investigation report and recommending that Council conduct a further investigation d) assessing a second investigation report conducted on behalf of Council into the allegations e) providing further advice to Council on its obligations under the Scheme and in relation to that second report. 4. Ombudsman staff also communicated with the Children's Guardian about the allegations during the matter. …
Following its desktop audit, WISE Workplace recommended to IOSS that a further investigation be undertaken in relation to the 2016 misconduct allegations made against the Applicant. IOSS commissioned that work from WISE Workplace.
The Applicant was advised of the allegations and the particulars of these allegations by letter from WISE Workplace dated 26 November 2018. That letter sets out 3 'topic' allegations being 'sexual misconduct - crossing boundaries', 'ill-treatment'; and 'neglect' which are supported by particulars of 21 alleged incidents. Most of these allegations had never been articulated or put to the Applicant previously.
The investigator invited the Applicant to attend an interview to discuss these allegations. He was at that time travelling in Africa. In various correspondence to IOSS and WISE Workplace he challenged the fairness and integrity of this investigation and he declined to participate in it.
By letter to the Applicant dated 11 February 2019 the Agency's General Manager notified the Applicant of the outcome of the WISE Workplace investigation. In short summary, that investigation substantiated the allegations of sexual misconduct - crossing boundaries and ill-treatment and determined that the allegation of neglect was 'out of jurisdiction'. A copy of this report was provided to the Ombudsman and the OCG.
By letter dated 1 May 2020 the NSW Ombudsman (himself) responded to the Applicant's various complaints to that office about the Agency's investigation of the conduct complaints made against him and the Ombudsman's Employment Related Child Protection Division's (ERCPD) handing of the allegations reported to it by the Agency pursuant to the reportable conduct scheme. That letter includes the following statements Your complaints - Council's handling of reportable conduct allegations I refer to your complaints concerning Cumberland Council's handling of allegations of sexual misconduct made against you. I am aware that it has taken my office some time to review your complaints, and that the closure of our office as a result of the COVID-19 pandemic has further delayed my response. I am sorry for the delay. For the purposes of considering your complaints about the handling of the allegations by Council and by my office, I requested that my Legal Branch conduct a detailed review of all the investigations that were carried out on behalf of the Council, including the evidence considered by the various investigators involved and the process that was undertaken by those investigators. I then requested comments and responses from those staff responsible for handling reportable conduct notifications within my office. I then reviewed the material provided to me by the Legal Branch and by staff who handled the notifications in question. Investigations of reportable conduct allegations 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) [sustain?] 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.
The Ombudsman also made the following comments in relation to his Office's ERCPD's handling of the matters concerning the Applicant: [regarding complaints that the ERCP failed to adequacy explain its role and powers] I accept that the communication with you about various processes engaged in by Council and the ERCPD was inadequate. It was a complex and convoluted matter; various aspects of the Ombudsman's jurisdiction were involved. ERCPD's processes were convoluted and the interpretation given to statutory terms such as 'sexual misconduct' are questionable. That was not the fault of the officers involved in monitoring these matters who applied the Ombudsman's policies that were in place at the relevant time. It has now been addressed by statutory amendment. Both agencies should have taken greater care to explain what was occurring. The ERCPD should have better explained the limits of their powers and responsibilities in a timely manner. [regarding the ERCPD recommending the Agency conduct a fourth investigation] … Your point about lack of procedural fairness has been accepted; you were not provided with procedural fairness. [regarding complaints that the ERCPD failed to provide an adequate explanation for the substantiated claims of sexual misconduct] The ERCPD attempted to persuade the Council to provide you with the evidence it relied upon to sustain the sexual misconduct findings and the reasoning which led to those findings. Council did not accept that recommendation. The ERCPD had no power to take the matter further. ERCPD subsequently advised the OCG that despite these shortcomings and despite you not being interviewed as part of the investigation those findings were sound. This review has come to a different conclusion and the OGC will be advised that the Ombudsman does not consider the findings to be sound in view of the flawed procedures underpinning them. Legislative amendments have also been made to the reportable conduct scheme, which we hope will address situations where these kinds of issues arise.
By notice dated 3 June 2020 the Applicant was advised by the Office of the Children's Guardian that he had been 'cleared' for work with children in both volunteer and paid roles for a period of 5 years to 3 June 2025 (his Working with Children Check Clearance was reinstated).
The Applicant has filed substantial medical evidence which establishes that he sustained and continues to live with a severe psychological injury that results from the events set out above.
On or about 15 November 2018 the Applicant made a worker's compensation claim against the Agency and later instituted proceedings in the Workers Compensation Commission in respect of that injury.
By A Deed of Release dated 25 August 2020 earlier signed by the Applicant and witnessed by a family member on 20 August 2020 the Applicant settled that dispute in return for the payment of a monetary amount, which is referred to in the Deed as "the Damages". The following sections of the Deed of Release are Relevant in these proceedings: Background … C The Worker alleges that as a result of the Worker's employment with the Employer he sustained psychological and physical injuries (the Injuries). Without limiting the generality of the aforesaid, the Injuries include the injuries subject of the Worker's claim in Workers Compensation Commission proceedings [case no redacted] and subject of the Employee Claim Form completed by the Worker dated 15 November 2018. D The Worker alleges he suffered the Injuries as a result of the Employer's negligence, breach of statutory duty and/or breach of contract, and seeks payment of damages from the Employer (the Claim). The Employer disputes the claim. E. The Parties have agreed to settle all claims and allegations made against the Employer by the Worker without admission of liability by the Employer and to finalise all entitlements that may exist between the Worker and the Employer. … 8 Release 8.1 The Worker releases the Employer and the Insurer and any of their respective present or past officers, employees and agents from all claims of any kind arising out of, connected with or incidental to the Injury and the Claim. 8.2 The Worker indemnifies the Employer and the Insurer and any of their respective present or past officers, employees and agents: (a) in respect of all claims of any nature which the Worker may at any time bring against the Employer and/or the insurer; and (b) in respect of all loss suffered by the Employer and the Insurer arising out of or in connection with the Claim. 8.3 The Worker covenants in favour of the Employer and Insurer and their respective present or past officers, employees and agents not to: (a) bring or pursue; (b) procure a third party to pursue; (c) provide financial support in relation to; or (d) otherwise support, any claim in respect of any matter which is the subject of the releases set out in this Deed of Release. … 14 Bar to 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. …

The privacy complaints

The Applicant lodged his first privacy complaint with the Agency on 13 October 2021 using a 'standard form' 'Privacy Complaint: Internal Review Application Form' published by the Information Commissioner. In section 5 of that form the Applicant set out the following against the prompt 'what is the specific conduct you are complaining about?": Under PPIP Act, I request Cumberland Council to undertake a fact-finding investigation into the issues subject of this Internal Privacy Review Application. 1. On or around April 2017, without my knowledge or consent, an unknown number of Cumberland Council staff 'passed around' - an anonymous letter containing false, incomplete and misleading allegations that I was a risk of significant harm (ROSH) to children. 2. Without my knowledge or consent, Cumberland Council (likely Mr Taylor) disclosed this to the O'Connell Group to "conder" in their (already open) investigation into my bullying and harassment complaint of Ms Z and Ms A. 3. Without my knowledge or input, Council then used this letter to make a "sustained sexual misconduct" finding against me. 4. Council's covert finding triggered an interim bar on my working with children check. 5. Again, in January 2018, Council (likely Mr Taylor) commissioned O'Connell to investigate me, under the guise of investigating my complaint against Ms Z and Ms A. 6. Without my knowledge or input this resulted in Cumberland Council making a second finding of "sustained sexual misconduct" against me on 20 February 2018, and Council submitting another ROSH report against me in February 2018. 7. Again, throughout 2018-2019, in response to a bullying and harassment complaint I submitted to the NSW Ombudsman, Cumberland Council conducted a third investigation directly targeting me and made a third finding of "sustained sexual misconduct" (and also "ill-treatment") against me. 8. Council's pattern of behaviour is an abuse of process, detrimental reprisal action and a gross misuse of my personal information. Council's findings ensured that the interim bar imposed upon me was extended for a total of 2.5 years. 9. In 2020, the NSW Ombudsman conducted a review that determined that Council's various investigations against me were littered with "various flaws" and that it was "impossible" for Council to be confident in their findings against me. 10. Council showed no remorse. 11. By this stage, Council's flawed and prolonged investigations had tormented me to the extent that my mental health was permanently impaired and my career was over. 12. As Cumberland Council intentionally and persistently chose to misuse my personal information under the guise of investigating someone else, and Council's subsequent findings resulted in a vexatious and pointless witch hunt against me, I request Cumberland Council to cease their continued attacks against me, apologise and pay appropriate damages.
In section 6 of the form, in response to the prompt 'please tick which of the following describes your complaint: (you may tick more than one option) the Applicant ticked the following:

Collection of my personal or health information
Security or storage of my personal or health information
Refusal to let me access or find out about my personal or health information
Accuracy of my personal or health information
Use of my personal or health information
Disclosure of my personal or health information.

In section 7 of the form, in response to the prompt 'when did the conduct occur (date)?' the Applicant stated: 'On or abound April 2016 - March 2019". In section 8 of the form, in response to the prompt 'when did you first become aware of this conduct', the Applicant stated: 'On or around 12 July 2021 in a statement prepared by Cumberland Council, signed by [Mr T]".
In response to an enquiry made by the Agency, the Applicant elaborated on his complaint in a 10 page letter to the Agency dated 1 December 2022. In that letter the Applicant asserts that the Agency's impugned conduct (which is set out) constituted breaches of ss 8, 9, 10, 11,12,13,16, 17, and 18 of the PPIP Act.
As has already been stated, at the Case Conference conducted on 30 May 2022 in relation to the first application, the Applicant's first privacy complaint was remitted to the Agency for reconsideration by way of internal review by consent. The terms of remittal required the Agency to provide to the Applicant and the Tribunal its decision on the internal review by 30 June 2022.
Upon its remittal from the Tribunal, the Agency engaged an office of IOSS to investigate the complaint. That officer produced a report dated 24 June 2022 which is in evidence. In short summary, the officer concluded that the impugned conduct did not constitute any contravention of an IPP and recommended that the Agency take no action on the matter.
By letter dated 30 June 2022, the delegate of the Agency notified the Applicant and the Tribunal of the outcome of its internal review as follows: I refer to the privacy review application lodged by [FGJ] with Council on 13 October 201 and orders made by the NSW Civil and Administrative Tribunal on 30 May 2022. The Council has now made a decision on the application. Council findings are that matters raised within the application do not establish that the Council breached any information protection principle under the Privacy and Personal Information Protection Act 1998 (the Act). Reasoning for Council's findings are: • The FACS letter dated 18 April 2017 was not disclosed or used other than for the purpose of investigating the conduct of the applicant. • Findings made by the Council in respect of the applicant's conduct were only ever made based upon the totality of information to hand to the Council at the time and were not made exclusively in reliance upon the FACS letter. • The Council has never made a risk of significant harm report concerning the applicant. This is the case despite Mr T having earlier stated so. Mr T's description was incorrect. The Council submitted a form B to the NSW Ombudsman in February 2018, not a risk of significant harm report. • The Council will not be disclosing the content of the FACS letter dated 18 April 2017 and the risk of significant harm report it relates to. Nevertheless, and without admitting or denying whether contending inaccuracies/ misleading information nominated by the applicant were included within the letter, the Council says that such contended inaccuracies/ misleading information had no bearing on Council findings concerning the applicant's conduct with children. • An assertion that a female Council staff member requested FACS to provide the FACS letter to Council is speculation. Council has no knowledge who made a risk of significant harm report to FACS. • The Council is obliged to keep the FACS letter as a record and further notes that it remains the subject of ongoing litigation. • Other matters and assertions raised within the application go beyond privacy issues reviewable under the Act. Having regard to the above, the Council has determined under s 53(7) of that Act, to take no further action on the matter. …

The orders of the Tribunal, differently constituted on 19 April 2022 remitting the privacy complaint for reconsideration by the Agency are in the following terms: 2. By consent, the Internal Review to be conducted by the respondent on remittal, is to cover all aspects of the applicant's Privacy Internal Review request (ie: collection, security/storage, accuracy, use and disclosure of his personal information as per the application dated 13/12/2021 and the further particulars dated 6/3/2022) but NOT the access (s 14) grievance.
In its notice of decision in relation to the remitted privacy complaint dated 17 June 2022, the delegate of the Agency advises that the complaint had been determined as follows: … The Council has now made a decision on the application. Council's findings are that matters raised within the application do not establish that the Council breached any information protection principle under the Privacy and Personal Information Protection Act 1998 (the Act). Reasoning for Council's findings are:

receipt of the FACS letter dated 18 April 2017 was unsolicited by the Council.
The Council did not "flip" findings concerning the applicant's conduct with children. Different findings were made at different times according to information at hand at the time.
There is no basis to conclude that the FACS letter was the sole document used as the basis for findings on the applicant's conduct with children.
The Council will not be disclosing the content of the FACS letter dated 18 April 2017 and the risk of significant harm report it relates to. Nonetheless, and without admitting or denying whether contended inaccuracies/misleading information nominated by the applicant were included within the letter, the Council says such contended inaccuracies/ misleading information had no bearing on Council's findings concerning the applicant's conduct with children.
No information was disclosed other than for the purpose of investigating child protection matters.
There was no obligation on Council to advise the applicant of the personal information held concerning the applicant absent a request from the applicant was to whether Council held personal information about him. Having regard to the above, the Council has determined under s.53(7) of that Act, to take no further action on the matter. …

Although not referred to in the Agency's letter of 17 June 2023, the outcome stated there was based on a "Privacy Review" conducted by Mr Corey Jones, the Agency's Manager, Strategy and Improvement. An undated report of that review is in evidence. Mr Jones conducted this review by reference to IPP's 5, 6, 8, 9, and 11 (ss 12, 13, 15, 16 and 18 of the PPIP Act).

Jurisdiction

Section 9 of the ADR Act provides that the Tribunal has administrative review jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under that Act of such a decision.
In this respect s 55(1) of the PPIP Act provides that a person who has made an application for internal review under section 53 is not satisfied with either (a) the findings of the review or (b) the action taken by the public sector agency in relation to the application may apply to NCAT for an administrative review under the ADR Act of the conduct that was the subject of the application under s 53.
Section 53 of the PPIP Act provides, relevantly to this application: 53 Internal review by public sector agencies (1) A person ("the applicant") who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct. … (3) An application for such a review must - … (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. … (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 s 55 to the Tribunal for an administrative review of the conduct concerned.
In this case there is a real issue as to whether the Applicant's privacy complaints complied with the s 53(3)(d) requirement that they be lodged within 6 months of the date the Applicant first became aware of the conduct that was the subject of the complaint. Prima facie (without deciding) the Agency had no obligation to conduct the internal reviews requested by the Applicant.
However, the Agency did not resist the administrative review applications on this basis when they came before the Tribunal. It accepted the remittal of the complaints by consent thus 'allowing' further time for the complaints to be made. By operation of that remittal the 17 June 2023 and 30 June 2023 decisions became the reviewable decisions.
As I have said, the second administrative review application was filed with the Tribunal after the elapse of 60 days without the Agency having conducted an internal review in response to the Applicant's request as required by s 53(6). Section 55(2) of the ADR Act provides that, subject to enabling legislation, an application for administrative review is to be made in the time and manner prescribed by the procedural rules.
The PPIP Act does not specify a time within which an application for administrative review under s 55 of that Act must be made. Consequently, the procedural rules apply. In this respect rules 24(3)(b) and 24(4)(1a) of the Civil and Administrative Tribunal Rules 2014 (NSW) provide that the 'default application period' in the circumstances of this case is 28 days after the 60 day period specified in s 53(6) expired unless the Tribunal extends the time in which the application can be made under s 41 of the NCAT Act. In this case the Applicant's administrative review application was made on 17 March 2022, which was 95 days after he requested the Agency to conduct an internal review on 13 December 2021. His administrative review application was thus made 7 days outside the time permitted.
At no stage in the proceeding before me was this point taken by the Agency. It may have been dealt with orally at some earlier stage by the Tribunal differently constituted, but I cannot find any record of a formal order extending time for the application to be made.
The delay is short. The Agency is in no worse position to respond to the application for those 7 days than it would have been had the application been made within time. There is a public interest in an external review of the conduct of the Agency impugned by the Applicant's privacy complaint having regard to the personal impact he asserts that conduct has had on him. The delay is at least partially explained by the Applicant's letter to the Agency dated 6 March 2022 which put the agency on notice as to an application to NCAT for external review if he did not receive an outcome of his internal review request forthwith (although there is no explanation as to why it took him so long to respond to the Agency's letter of 22 December 2021). Although I have, in effect, dismissed the application on its merits on prima facie basis the second privacy complaint was arguable. Having regard to these considerations, and out of an abundance of caution I will therefore extend the time in which the application can be made to the date it was made (17 March 2022).
The Tribunal's role in the conduct of an administrative review is prescribed in s 63 of the ADR Act: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) the applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The Tribunal is to reach its own conclusion as to what is the correct and preferrable decision is by conducting its own assessment of the factual issues and the implications of the IPPs. This is, in essence, to do again what the original decision-maker did. In this respect the Tribunal stands in the shoes of the original decision maker for the review process. The Tribunal's role is to make the correct and preferrable decision on the material before it as it stands at the date of the hearing. This may include consideration of material that was not considered by the original decision maker: Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286.
Section 55(2) of the PPIP Act sets out the orders that the Tribunal may make as a consequence of its reviews: (2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders - (a) subject to subsections (4) and 4(A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct, (b) an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice, (c) an order requiring the performance of an information protection principle or a privacy code of practice, (d) an order requiring personal information that has been disclosed to be corrected by the public sector agency, (e) an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant, (f) an order requiring the public sector agency not to disclose personal information contained in a public register. (g) such ancillary orders as the Tribunal thinks appropriate.

Remedy sought

In his Statement dated 23 January 2023 the Applicant states that he seeks by way of remedy in both applications: 1. A written apology from the Mayor of Cumberland City Council for the misuse of his personal information without his knowledge or consent when he was no longer an employee of the Agency, 2. A further apology from the Agency for using unsolicited personal information about him in several investigations without ensuring that information was accurate, up to date, complete and not misleading before its use, 3. A further apology from the Agency for its role in making "impossible" findings that forced the OCG to implement the 2.5 year long interim bar on his Working with Children Check Clearance, 4. A further apology for the long-term pain, loss, degradation and suffering imposed on him due to the Agency's breaches of s 16 of the PPIP Act (IPP 9), 5. The maximum financial 'restitution' of $40,000.00 'due to the exorbitant impact of [the Agency's] negligence on [his] personal life and the ongoing, pain, loss and suffering caused, 6. An addendum to all copies of his personal information that Council has received, holds and has used or disclosed to any agency or individual 'for the purported purposes of child protection' that contains words to the effect of: "The personal information contained within this record was not properly or adequately checked by Cumberland Council to ensure that it was accurate, up to date, complete and not misleading before it was used or disclosed by Cumberland Council. Cumberland Council acknowledges that the personal information contained within this record was used and possibly misused for a purpose that was not a purpose or function of Cumberland Council. Cumberland Council apologises for its failure to check the relevance, accuracy and completeness of this personal information before it was used.
In his final submissions filed on 26 May 2024, the Applicant states the following in relation to remedy (presumably in relation to both reviews): 50. Council should be ordered to correct the misleading, false and incomplete information (for example, by way of a memo permanently attached to each copy) of each document it holds, forward a copy of it to me for my records, and issue a written statement from the Mayor acknowledging and apologising that it "used" inaccurate, incomplete and misleading information in its investigations regarding me without my knowledge or consent. 51. Council should be ordered to conduct and undertaking (sic) to prevent similar unauthorised disclosures of my personal information in the future. … 53. I do not explicitly "claim" financial compensation for the conduct complained of in either of these proceedings. However, if the member deems an order for damages reasonable and appropriate on his own sense of justice, I request that he states so in his determination (regardless of whether it is granted or not) …

Applicable law

The term "personal information" is defined in s 4(1) of the PPIP Act, relevantly, as follows: 4 Definition of "personal information" (1) In this Act, "personal information" means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion. …
Sections 4(4) and 4(5) of the PPIP Act prescribe the circumstances in which personal information is "held" and "collected" by a public sector agency for the purposes of that Act: (4) For the purposes of this Act, personal information is "held" by a public sector agency if - (a) the agency is in possession or control of the information, or (b) the information is in the possession or control of a person employed or engaged by the agency in the course of such employment or engagement, or (c) the information is contained in a State record in respect of which the agency is responsible under the State Records Act 1999. (5) For the purposes of this Act, personal information is not "collected" by a public sector agency if the receipt of the information by the agency is unsolicited.
Part 2, Division 1 of the PPIP Act sets out the "information protection principles" prescribed by that Act. These are set out following: 8 Collection of personal information for lawful purposes (1) A public sector agency must not collect personal information unless - (a) the information is collected for a lawful purpose that is directly related to a function or activity of the agency, and (b) the collection is reasonably necessary for that purpose. (2) A public sector agency must not collect personal information by any unlawful means. 9 Collection of personal information directly from individual A public sector agency must, in collecting personal information, collect the information directly from the individual to whom the information relates unless - (a) the individual has authorised collection of the information from someone else, or (b) in the case of information relating to a person who is under the age of 16 years - the information has been provided by a parent or guardian of the person. 10 Requirements when collecting personal information 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. 11 Other requirements relating to collection of personal information If a public sector agency collects personal information from an individual, the agency must take such steps as are reasonable in the circumstances (having regard to the purposes for which the information is collected) to ensure that - (a) the information collected is relevant to that purpose, is not excessive, and is accurate, up to date and complete, and (b) the collection of the information does not intrude to an unreasonable extent on the personal affairs of the individual to whom the information relates. 12 Retention and security of personal information A public sector agency that holds personal information must ensure - (a) that the information is kept for no longer than is necessary for the purposes for which the information may lawfully be used, and (b) that the information is disposed of securely and in accordance with any requirements for the retention and disposal of personal information, and (c) that the information is protected, by taking such security safeguards as are reasonable in the circumstances, against loss, unauthorised access, use, modification or disclosure, and against all other misuse, and (d) that, if it is necessary for the information to be given to a person in connection with the provision of a service to the agency, everything reasonably within the power of the agency is done to prevent unauthorised use or disclosure of the information. 13 Information about personal information held by agencies A public sector agency that holds personal information must take such steps as are, in the circumstances, reasonable to enable any person to ascertain - (a) whether the agency holds personal information, and (b) whether the agency holds personal information relating to that person, and (c) if the agency holds personal information relating to that person - (i) the nature of that information, and (ii) the main purposes for which the information is used, and (iii) that person's entitlement to gain access to the information. 14 Access to personal information held by agencies A public sector agency that holds personal information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information. 15 Alteration of personal information (1) A public sector agency that holds personal information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the personal information - (a) is accurate, and (b) having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading. (2) If a public sector agency is not prepared to amend personal information in accordance with a request by the individual to whom the information relates, the agency must, if so requested by the individual concerned, take such steps as are reasonable to attach to the information, in such a manner as is capable of being read with the information, any statement provided by that individual of the amendment sought. (3) if personal information is amended in accordance with this section, the individual to whom the information relates is entitled, if it is reasonably practicable, to have recipients of that information notified of the amendments made by the public sector agency. (4) This section, and any provision of a privacy code of practice that relates to the requirements set out in this section, apply to public sector agencies despite section 25 of this Act and section 21 of the State Records Act 1998. (5) The Privacy Commissioner's guidelines under section 36 may make provision for or with respect to requests under this section, including the way in which such a request should be made and the time within which such a request should be dealt with. (6) In this section (and in any other provision of this Act in connection with the operation of this section), "public sector agency" includes a Minister and a Minister's personal staff. 16 Agency must check accuracy of personal information before use A public sector agency that holds personal information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading. 17 Limits on use of personal information A public sector agency that holds personal information must not use the information for a purpose other than that for which it was collected unless - (a) the individual to whom the information relates has consented to the use of the information for that other purpose, or (b) the other purpose for which the information is used is directly related to the purpose for which the information was collected, or (c) the use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual to whom the information relates or of another person. 18 Limits on disclosure of personal information (1) 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.
Part 2, Division 2 of the PPIP Act contains some general provisions related to the Information Protection Principles contained in Division 1. Relevantly, s 21 provides: 21 Agencies to comply with principles (1) A public sector agency must not do any thing, or engage in any practice, that contravenes an information protection principle applying to the agency. (2) The contravention by a public sector agency of an information protection principle that applies to the agency is conduct to which Part 5 applies.
With respect to s 21(2) Part 5 of the PPIP Act concerns the review of certain conduct, including in s 55, administrative review by this Tribunal.
Part 2, Division 3 of the PPIP Act contains specific exemptions from the information privacy principles. Relevantly, they include in section 25 exemptions where non-compliance is lawfully authorised or required: 25 Exemptions where non-compliance is lawfully authorised or required A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18, or 19 if - (a) the agency is lawfully authorised or required not to comply with the principle concerned, or (b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998).

Consideration

At the outset it is important to recognise that the Tribunal's role in these administrative reviews is limited to determining if any conduct of the Agency that is impugned by the Applicant constitutes a contravention of an IPP. The Tribunal does not have jurisdiction at large to determine if the Applicant has been the subject of a work related wrong other than in relation to a contravention of an IPP.
This analysis involves the following steps: 1. precise identification of the 'personal information' that is in issue, 2. precise identification of the conduct of the Agency that the Applicant impugns, 3. determining if that conduct occurred as a matter of fact (on the balance of probabilities), 4. determining if an IPP is engaged by that conduct (or any component of it), 5. determining if an IPP has been contravened by that conduct (or any component of it), 6. consideration of the remedy, if any, the Applicant is entitled to having regard to the nature and impact of that contravention.
As I understand the Applicant's case, the personal information that is in issue in these administrative reviews is: 1. the Applicant's name, 2. the Applicant's connection with the Agency as an employee and former employee, 3. the fact that the Applicant was the subject of misconduct complaints while in the employ of the Agency in 2016, which were investigated at that time. 4. the fact that the Applicant was the subject of a risk of significant harm report made to the NSW Child Protection Hotline in April 2017, 5. the fact that the Applicant was the subject of a report from Auburn Community Services to the Director of the OOSH Service in April 2017 as a result of that risk of harm report.
As I understand the Applicant's case, his privacy complaints allege the following conduct of the Agency in relation to that personal information which is in contravention of the IPPs (the impugned conduct): 1. an unidentified person acting on behalf of the Agency made a risk of significant harm report to the NSW Child Protection Hotline on or about 12 April 2017. That risk of harm report involved the provision of false personal information about the Applicant to the Hotline. That false information included that the Agency had terminated his employment in December 2016 due to child protection issues, that he was involved in a reading program at the OOSH Service, and that he was a risk of harm to children at the OOSH Service generally and with respect to specific children named in the notification, 2. the risk of harm notification was made at the instigation of the Agency to 'solicit' the FACS letter from Auburn Community Services to be sent to the OOSH Service concerning that notification, 3. the 'purpose' of the Agency in soliciting the FACS letter was to 'use' its contents in an attempt to counter, or misdirect, or subvert the investigation the Agency had commissioned from OWR into his complaints of bullying and harassment, 4. the Agency failed to disclose to the Applicant that it held his personal information, being the contents of the FACS letter, the purpose for which it was collected, or the use that would be made of that information, 5. the FACS letter was 'disclosed' to OWR, the NSW Ombudsman (in the Form A and Form B), IOSS and to WISE Workplace, 6. OWR and WISE Workplace 'used' the false information contained in the FACS letter as the basis for substantiating false allegations of sexual and other misconduct in circumstances where those allegations had previously been found not to be substantiated, and where, with respect to the OWR investigation, the Applicant did not know these matters were being re-investigated and was given no opportunity to respond to them, 7. the information that OWR and WISE Workplace used to substantiate allegations of sexual and other misconduct, including that contained in the FACS letter, is personal information of the Applicant which he is entitled to know. However, the Agency has refused to provide him with access to this information or OWR's and WISE Workplaces investigation reports, 8. the Agency had no function involving the investigation or reporting of the information contained in the FACS letter because on the date it was received he had not been an employee of the Agency for a period of 4 months and had indicated to the Agency that he no longer sought casual employment with it due to its failure to properly address his bullying and harassment complaints, 9. for the foregoing reason the Agency ought to have disposed of the FACS letter upon its receipt, rather than take any action in relation to it, 10. the Agency has failed to maintain the security of the FACS letter internally with the result that its contents have become widely known to persons who have no proper reason to know about it. The Applicant's privacy has been violated as a result and he has become the subject of malicious gossip.
The IPPs are typically informally grouped into 5 categories: those that deal with the 'collection' of personal information (IPPs 1, 2, 3, and 4; ss 8 to 11 of the PPIP Act); those that deal with the 'storage' of personal information (IPP 5; s 12 of the PPIP Act); those that concern 'access to' and the 'accuracy of' personal information (IPPs 6,7, and 8; ss 13, 14 and 15 of the PPIP Act); those that concern the 'use' of personal information (IPPs 9 and 10; ss 16 and 17 of the PPIP Act); and, those that relate to the 'disclosure' of personal information (IPPs 11 and 12; ss 18 and 19 of the PPIP Act).

The Applicant's complaints about the collection of his personal information

The Applicant's alleged contraventions by the Agency of the collection IPPs all relate to the circumstances in which the Agency obtained the FaCS letter. For the collection IPPs to be engaged it is necessary that the agency has in some active or passive way (such as by posting an on-line complaint-form: ZR v Department of Education and Training [2010] NSWADTAP 75 at [56] to [58]) requested, invited or solicited the receipt of the Applicant's personal information.
Personal information will not be 'collected' by an agency for the purposes of IPPs 1 to 4 (ss 8 to 11 of the PPIP Act) if its receipt by the agency is 'unsolicited': s 4(5) of the PPIP Act. In Vice-Chancellor, Macquarie University v FM [2003] NSWADTAP 43 at [86] an Appeal Panel opined: 86. … As we conceive of the term 'unsolicited' it refers to information that an agency finds itself receiving (primary meaning, Macquarie Dictionary, 'not asked for'). A public sector agency is not bound by the Collection principles in that situation as it had no opportunity to define or set the parameters under which it was received…
The Applicant speculates that someone working for or on behalf the Agency must have made the risk of significant harm report to the NSW Child Protection Hotline, and by that act, the Agency caused FaCS to issue its letter to the Director of the OOSH Service.
It must be accepted that there is some circumstantial evidence that has a tendency to support that contention (the Applicant had not been employed by the Agency since 16 December 2016; his bullying and harassment complaint was lodged with the Agency on 4 April 2017, and shortly afterwards a significant risk of harm report was made to the NSW Child Protection Hotline about the source events that gave rise to those complaints). The coincidence of those events is suspicious.
However, there is no direct evidence of who the notifier was. The state of the evidence is very far from being sufficient for the Tribunal to conclude that the notifier was acting on behalf of the Agency in order to solicit the FaCS letter.
On the state of the evidence it must be accepted that the FaCS letter was unsolicited and therefore not 'collected' by the Agency for the purposes of the PPIP Act. IPPs 1 to 4 (ss 8 to 11 of the PPIP Act) are therefore not engaged in the circumstances of this case, and no contravention of them can be found.

The Applicant's complaints about the storage of his personal information

IPP 5 (s 12 of the PPIP Act) concerns personal information that is 'held' by an Agency. Even though the Agency did not collect the FaCS letter for the purposes of the PPIP Act, there is no issue that after its receipt, it was 'held' by it for the purposes of that Act.
As I understand it, the contraventions of IPP 5 the Applicant alleges are: 1. that the FaCS letter was kept for longer than was necessary for the purposes for which it could be lawfully used because he was no longer employed by the Agency when it was received. Having regard to that fact he contends that the FaCS letter ought to have been disposed of on its receipt, 2. that the Agency has failed to protect his personal information contained in the FaCS letter from unauthorised access, use, disclosure and against all other misuse.
The Applicant's first contention cannot be accepted. The FaCS letter was issued to the Agency in the context of the then operative child protection employment related reportable conduct scheme. By its terms the FaCS letter required the agency to determine if the risk of significant harm report disclosed 'reportable conduct' requiring a Form A and Form B to be submitted to the NSW Ombudsman in relation to the investigation of that conduct. The Agency's obligation to comply with requirements of that scheme did not end because the Applicant had left its employment.
Additionally, the Agency submits, and it must be accepted, that the FaCS letter is also a 'state record' within the meaning of the State Records Act 1998 which must be retained by the Agency in accordance with s 21(1)(a) of that Act.
The Applicant's contentions to the effect that his personal information contained in the FaCS letter has been the subject of unauthorised disclosure by the Agency are misconceived or speculative only. The FaCS letter was 'disclosed' to OWR, IOSS, WISE Workplace, the NSW Ombudsman, and OCG but all of those disclosures were 'authorised' by the Agency, and in the case of the NSW Ombudsman and OCG required by law.
The Applicant contends that various persons within the Agency have had access to the FaCS letter in circumstances where they did not need to have access to this information. That is denied by the Agency. Mr Jones attaches to his Statement a print-out of TRIM records which record who had access to that record (the FaCS letter) and when. The persons who appear on that list are all senior officers of the Agency whose role incorporates or reasonably relates to the management of the Agency's actions in response to that letter. In cross-examination Mr Jones made some concession in response to the Applicant's questions that he could not ultimately be certain if anyone else had seen the letter before it became a protected digital record. But that is not sufficient to establish that authorised access did occur.
The Applicant contends that the FaCS letter was 'misused' by the Agency, OWR, and WISE Workplace for the purposes of subverting his bullying and harassment complaints and sustaining findings of sexual and other misconduct by him in circumstances where those complaints had not previously been substantiated. The very serious deficiencies in the investigations carried out by OWR and WISE Workplace were ultimately the subject of findings by the NSW Ombudsman. However, in this context, I am not satisfied that it was a 'misuse' of the FaCS letter for the Agency to cause the conduct contained in it to be independently investigated by OWR and WISE Workplace. The failings of those investigations are downstream of that use.
I am thus not satisfied that there was any contravention of IPP 5.

The Applicant's complaints about the access and accuracy of his personal information

I have found consideration of the contraventions by the Agency of IPPs 6 and 7 alleged by the Applicant challenging.
Firstly, with respect to the second application it appears to me that any alleged contravention of s 14 (IPP 7) was excluded by the Tribunal from the conduct that was subject to the internal review by the order made remitting the complaint for reconsideration. No reason is stated for that in the determination sheet, but is likely to relate to my next point.
Second, the Applicant's access to the personal information the subject of his complaints has been the focus of GIPA applications, contested summons, and contested s 59 of the ADR Act applications. I take the view that no stone has been left unturned by these actions and there is nothing new for me to say about these matters in the context of these proceedings. For me to embark on this is likely to be contrary to the principle of re judicata, or at the least, give rise to the potential for inconsistent decision-making between differently constituted Tribunals in relation to the same issues.
The gravamen of the alleged contravention of IPP 6 is that the Agency failed to disclose the existence of the FaCS letter and the subsequent action it took in relation to it to the Applicant; in particular, that it concealed from him the fact that that letter had triggered a dual investigation by OWR into his workplace bullying and harassment complaints alongside child-related misconduct allegations made against him. That is an issue that goes fundamentally to the fairness and integrity of OWR's investigation, which is not a matter that is before this Tribunal for determination.
Rather, the issue here is whether s 13 of the PPIP Act imposed a positive obligation on the Agency to disclose to the Applicant, absent any enquiry from him, that it held the FaCS letter. Although it leads to an unpalatable outcome in the circumstances of this case, I am not satisfied that s 13 is to be construed as imposing such a positive obligation on an Agency. The Agency submits, and I accept, that construing s 13 in this way would impose an impossible burden on agencies to notify every person of every item of personal information about them which is held by the Agency whether they are interested in knowing this or not. Rather s 13 should be construed as imposing an obligation on agencies to respond to actual requests from persons who want to ascertain the matters set out at 13(a) to (c).
I note that this conclusion should not be understood as having anything to say about an Agency's obligations to conduct complaint investigations in relation to allegations it receives in a procedurally fair way.
To any extent that an alleged breach of IPP 8 (s 15 of the PPIP Act) is contended by the Applicant, I note that it is only engaged where a request is made by a person to amend a record to correct, delete or add to it etc. In this case, there is no evidence that the Applicant ever made a request of the Agency to amend a specific record. That is a remedy sought in these proceedings, but no contravention of IPP 8 can be found if no amendment request had been made and refused as part of the conduct that was the subject of the administrative review.

The Applicant's complaints about the use of his personal information

The Applicant's complaints about the accuracy of his personal information contained in the FaCS letter are misconceived. The Agency was not the author of that letter, an officer of Auburn Community Services was. That officer was reporting information received in a risk of serious harm report to the NSW Child Protection Hotline. As stated above, it is not known who made that report. There is no sufficient evidentiary basis to conclude that it was a person associated with the Agency, and certainly no evidence that any such person was acting on the Agency's behalf. There is therefore simply no basis upon which the Agency could be held responsible for any incomplete, inaccurate, or misleading information contained in the FaCS letter.
There is also no evidence that the Agency perpetuated any of the inaccuracies about the applicant's personal information contained in the FaCS letter in action taken in response to that letter. That is, the Agency itself did not communicate to any person that the Applicant's employment was terminated in December 2016 as a result of a child protection investigation, or that he was engaged in a reading program, or that it had made adverse findings in 2016 in relation to the conduct complaints.
I am thus not satisfied that there was any contravention of IPP 9 (s 16 of the PPIP Act).
For the purposes of considering the whether the impugned conduct constituted a contravention of IPP 10 (s 17 of the PPIP Act), the Agency concedes that although the FaCS letter was not originally collected by it, once received it was obtained and used by it, such that s 17 applies in relation to it: MT v Director General, NSW Department of Education & Training [2004] NSWADT 194 at [171].
It must be accepted that the FaCS letter was obtained by the Agency, by way of referral from a child protection agency (Auburn Community Services, Department of Community Services) following receipt of a risk of significant harm notification to the NSW Child Protection Hotline concerning the Applicant. The Agency used the letter for the purpose it had been obtained by considering whether it had fulfilled its obligations under the child protection employment related reportable conduct scheme as it was in force at that time. After it determined it had not, or may not have done so, the letter was used for the purpose of fulfilling those obligations (in the sense of providing the foundation for re-investigation of misconduct allegation made against the Applicant in 2016).
The investigation conducted by OWR on behalf of the Agency may have been deficient, but that investigation that was nevertheless the purpose for which the FaCS letter had been obtained.
For this reason, the Agency conduct impugned by the Applicant cannot constitute a constitute a contravention of IPP 10.

The Applicant's complaints about the disclosure of his personal information

I have set out above my finding in relation to the Applicant's allegation that the FaCS letter and its contents were shared with Agency personnel who did not have a proper reason for having access to this information. That is not established on the evidence.
The FaCS letter and or its contents was disclosed by the Agency to OWS, the NSW Ombudsman, OCG, IOSS, and WISE Workplace. However, each of these disclosures related to the performance of the Agency's functions under the then in force child protection employment related reportable conduct scheme. Those disclosures were therefore exempt from the requirements of IPP 11 (s 18 of the PPIP Act) by operation of s 25(a). In this respect, OWR, IOSS and WISE Workplace were engaged by the Agency to assist it to perform its functions under that scheme. The fact that the actual performance of the obligation was later determined to be deficient does not alter that fact.
For this reason, the impugned conduct does not constitute a contravention of IPP 11.

Orders

For the foregoing reasons, I make the following orders: In 2021/00356513 1. The Tribunal will take no action on the matter. In 2022/00076498 1. Time is extended to 17 March 2022 for the application to be made. 2. The Tribunal will take no action on the matter.

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: 09 April 2024

Government Information (Public Access) Act 2007(NSW)

Health Records Information Privacy Act 2002(NSW)

(NSW), the Health Records and Information Privacy Act 2002(NSW)

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Judgment (29 paragraphs)

Legislation Cited (11)

Cases Cited (6)