The Ombudsman v Koopman & Anor

LOWER COURT Administrative Decisions Tribunal JURISDICTION : LOWER COURT 30060/02 FILE NUMBER(S) : LOWER COURT O'Connor DCJ JUDICIAL OFFICER :

• 9 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40086 of 2003

MASON P MEAGHER JA SANTOW JA

Monday, 29 September 2003 THE OMBUDSMAN v KOOPMAN & ANOR

FACTS These proceedings concerned the review of a decision of O'Connor DCJ, sitting as President of the Administrative Decisions Tribunal.

They turned upon a challenge by the Ombudsman (the Claimant) to the jurisdiction of the Tribunal (the Second Opponent) to hear and determine proceedings brought by Mr Robert Koopman (the First Opponent) against the Ombudsman, pursuant to s. 55 of the Privacy and Personal Information Protection Act 1998 (NSW).

This challenge to jurisdiction was founded upon the Claimant's contention that s. 35A of the Ombudsman Act 1974 (NSW) deprived the Tribunal of the jurisdiction to hear Mr Koopman's application. O'Connor DCJ held that the Tribunal did have jurisdiction in respect of the matter ( Koopman v Ombudsman's Office [2002] NSWADT 103), and that was the question that fell for determination in the Court of Appeal.

HELD per Meagher JA, allowing the appeal (Mason P and Santow JA agreeing): The Privacy and Personal Information Protection Act 1998 (NSW) does not expressly repeal s.35A of the Ombudsman Act 1974 (NSW). Nor does it do so by implication. It is possible to comply with both Acts. Section 35A of the Ombudsman Act merely imposes a condition precedent to the utilisation of the process set out in s.55 of the Privacy and Personal Information Protection Act , and that, in certain cases only. Saraswati v R (1991) 172 CLR 1, referred to. [20]

HELD per Mason P (Santow JA agreeing): In issue is the scope of s.35A of the Ombudsman Act in its application to a claim for compensation and other relief brought in reliance upon s.55 of the Privacy and Personal Information Protection Act . It does not assist to point to review procedures in the latter Act to which the Ombudsman may be subject, that are not in the nature of civil proceedings. Accountability at one level does not assist in determining the level of accountability in another context, which Parliament has specifically addressed in s.35 of the Ombudsman Act . [6]

ORDERS Orders 1-5 as set out in the Claimant's Summons.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40086 of 2003

MASON P MEAGHER JA SANTOW JA

Monday, 29 September 2003 THE OMBUDSMAN v KOOPMAN & ANOR Judgment 1 MASON P: I agree with Meagher JA. 2 Nothing turns upon whether the claimant is to be seen as objecting to the jurisdiction of the Tribunal under s55 of the Privacy and Personal Information Protection Act 1998 (PPIPA) or invoking a conditional immunity deriving from s35A(2) of the Ombudsman Act 1974. 3 It is not in dispute that the orders sought by the opponent in the Administrative Decisions Tribunal involve a claim made in "civil proceedings". This claim has been made without first obtaining the leave of the Supreme Court and it is therefore precluded by the plain language of s35A(2). 4 In dismissing the claimant's "objection to … jurisdiction", the Tribunal concluded that s35A must, in the present instance, be read subject to PPIPA in general and the right conferred by s55A thereof in particular. 5 It is difficult to see the precise basis for this conclusion in the Tribunal's reasons. One can readily accept the Tribunal's statement that "the Privacy Commissioner is the ultimate invigilator of compliance with PPIPA" (Koopman v New South Wales Ombudsman [2002] NSWADT 103 at [68]). It is less apparent why it follows that the Ombudsman is subject to investigation by the Privacy Commissioner pursuant to s36 of PPIPA and subject to a requirement for an internal review of conduct from an aggrieved person pursuant to s53 of PPIPA (cf [70]). 6 But these propositions are not in issue. What is at issue is the scope of s35A of the Ombudsman Act in its application to a claim for compensation and other relief brought in reliance upon s55 of PPIPA. It does not assist the opponent to point to review procedures within PPIPA to which the Ombudsman may be subject that are not of the nature of civil proceedings. In other words, accountability at one level does not assist in determining the level of accountability in another context, which Parliament has specifically addressed in s35 of the Ombudsman Act. 7 MEAGHER JA: These proceedings, which by order of Dunford J dated 13 December 2002 have been removed into the Court of Appeal from the Administrative Law List, concern the review of a decision of O'Connor DCJ, sitting as President of the Administrative Decisions Tribunal ('the Tribunal'). 8 They turn upon a challenge by the Ombudsman (the Claimant) to the jurisdiction of the Tribunal (the Second Opponent) to hear and determine proceedings brought by Mr Robert Koopman (the First Opponent) against the Ombudsman, pursuant to s. 55 of the Privacy and Personal Information Protection Act 1998 (NSW) ['the PPIP Act']. 9 This challenge to jurisdiction is founded upon the Claimant's contention that s. 35A of the Ombudsman Act 1974 (NSW) ['the Ombudsman Act'] deprived the Tribunal of the jurisdiction to hear Mr Koopman's application. O'Connor DCJ held that the Tribunal did have jurisdiction in respect of the matter (Koopman v Ombudsman's Office [2002] NSWADT 103), and that is the question that falls for determination in this Court. 10 It is convenient briefly to set out the history of Mr Koopman's action against the Ombudsman. 11 Mr Koopman was the officer responsible for making an original determination under the Freedom of Information Act 1989 (NSW), refusing a request for access to certain documents. Access to the documents had been requested by four Members of the New South Wales Parliament, and on refusal of their request they complained to the Ombudsman, who commenced an investigation of the complaint. On 6 August 2001, in response to certain "preliminary enquiries" made pursuant to s. 13AA of the Ombudsman Act, Mr Koopman provided to the Ombudsman's Office some personal information. It included, amongst other things, details of his professional experience and his academic qualifications. This information was then forwarded by the Ombudsman's Office to Mr Andrew Tink MP and other Members of Parliament - the parties, it seems, to the original request for access to the documents. On 18 September 2001, the information was published in The Manly Daily, the local newspaper of the Northern Beaches area of Sydney. 12 Mr Koopman contended that this divulgation of personal information was tantamount to a breach of s. 18 of the PPIP Act. That section, entitled "Limits on disclosure of personal information" provides (with certain exceptions) that a "public sector agency" must not disclose 'personal information' to any other person or body. Pursuant, presumably, to s. 53 of the PPIP Act, Mr Koopman sought an internal review of the decision of the Ombudsman's Office; a review determined unfavourably to Mr Koopman on 12 December 2001. 13 On 9 January 2002, Mr Koopman lodged at the Tribunal an Application for Review of Conduct of a Public Sector Agency (see s. 55, PPIP Act). Mr Koopman, in his application, designated as the relevant public sector agency the "Office of the Ombudsman"; which choice of words turned out to be a question of some importance in these proceedings. 14 The Claimant then intervened to argue whether s. 35A of the Ombudsman Act deprived the Tribunal of the jurisdiction to hear Mr Koopman's application. That section, submitted the Claimant, absolves the Ombudsman of any liability for civil proceedings until the granting of leave by the Supreme Court for the bringing of proceedings against the Ombudsman. 15 Learned counsel for Mr Koopman contended then, and contends now in this Court, that the PPIP Act confers a right to proceed against 'the Ombudsman's Office'. This right, it was submitted, is not trammelled by the operation of s. 35A of the Ombudsman Act, which confers immunity from suit on "[t]he Ombudsman" and "officer[s] of the Ombudsman". 16 In order to estimate the strength of the rival contentions, it is necessary to set out the statutory provisions on which either side relies. Section 35A of the Ombudsman Act 1974, on which the claimant relies, is in the following form: 17 "(1) The Ombudsman shall not, nor shall an officer of the Ombudsman, be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings in respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act unless the act, matter or thing was done, or omitted to be done, in bad faith. 18 (2) Civil or criminal proceedings in respect of any act or omission referred to in subsection (1) shall not be brought against the Ombudsman or an officer of the Ombudsman without the leave of the Supreme Court. 19 (3) The Supreme Court shall not grant leave under subsection (2) unless it is satisfied that there is substantial ground for the contention that the person to be proceeded against has acted, or omitted to act, in bad faith." 20 Section 55 of the PPIP Act, on which the first opponent relies, is as follows: 21 "(1) If a person who has made an application for internal review under section 53 is not satisfied with

a) the findings of the review, or 22 b) the action taken by the public sector agency in relation to the application 23 the person may apply to the Tribunal for a review of the conduct that was the subject of the application under section 53. 24 (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 subsection (3), 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 restrain 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 in a public register, 25 (g) such ancillary orders as the Tribunal thinks appropriate. 26 (3) Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997. 27 (4) The Tribunal may make an order under subsection (2) (a) only if: 28 (a) the application relates to conduct that occurs after the end of the 12 month period following the date on which Division 1 of Part 2 commences, and 29 (b) the Tribunal is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency. 30 (5) If, in the course of a review under this section, the Tribunal is of the opinion that the chief executive officer or an employee of the public sector agency concerned has failed to exercise in good faith a function conferred or imposed on the officer or employee by or under this Act (including by or under a privacy code of practice), the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister (if any) for the public sector agency…." 31 The claimant does not challenge the following conclusions of the Tribunal: 32 (a) s. 35A of the Ombudsman Act applies to the Ombudsman and all officers of the Ombudsman, including the Ombudsman's Office or the Office of the Ombudsman (if either of those things are, for any purpose, juristic entities). 33 (b) these proceedings, purportedly commenced pursuant to s. 55 of the PPIP Act, are "civil proceedings…….. in respect of any act, matter or thing done or omitted to be done for the purpose of executing the [Ombudsman] Act, as set out in 35A of the Ombudsman Act. 34 The ultimate conclusion at which the ADT arrived is that s. 35A of the Ombudsman Act should be read subject to the PPIP Act in the sense that the PPIP Act partially repeals s. 35A by modifying the general immunity it apparently confers. This case concerns the question whether that conclusion is tenable. In my view, it is not. 35 The PPIP Act does not expressly repeal s. 35A of the Ombudsman Act, in whole or in part. Nor, in my view, does it do so by implication. It is possible to comply with both Acts. They are not only not "wholly inconsistent" (Saraswati v R (1991) 172 CLR 1 at 17 per Gaudron J), they are not inconsistent at all. Section 35A of the Ombudsman Act merely imposes a condition precedent to the utilisation of the process set out in s. 55 of the PPIP Act, and that, in certain cases only. 36 I would make orders 1-5 as set out in the claimant's summons. 37 SANTOW JA: I agree with Meagher JA and the additional observations of Mason P.

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