EJE v Department of Education [2023] NSWCATAD 132

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: EJE v Department of Education [2023] NSWCATAD 132 Hearing dates: On the papers Date of orders: 31 May 2023 Decision date: 31 May 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: P French, Senior Member Decision: (1) A hearing of the respondent's Application for Miscellaneous Matters (summary dismissal) filed on 26 October 2022 is dispensed with in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). (2) The applicant's Application for Administrative Review is dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW). (3) The question of costs is reserved. (4) If the applicant wishes to make any further submission on the issue of costs, she must give that submission to the Tribunal and the agency by 9 June 2023. (5) The agency may make any further submission on the issue of costs, strictly limited to reply, by 16 June 2023. (6) The Tribunal proposes to dispense with a hearing on the issue of costs pursuant to s 55(2) of the Civil and Administrative Tribunal Act 2013 (NSW). If either party contends a hearing is required, they are to set out their reasons in their submissions. Catchwords: ADMINISTRATIVE LAW – Privacy and Personal Information Protection Act 1998 – administrative review of a reviewable decision – application for summary dismissal Legislation Cited: Administrative Decisions Review Act 1997 (NSW), ss 6, 7, 9, 55, 58 Civil and Administrative Tribunal Act 2013 (NSW), ss 28, 30, 39, 50, 55, 59, 64 Civil and Administrative Tribunal Rules 2014 (NSW), r 24 Privacy and Personal Information Protection Act 1998 (NSW), ss 15, 52, 53, 55 Cases Cited: Alchin v Rail Corporation NSW [2012] NSWADT 142 BQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 64 CCM v Western Sydney University [2019] NSWCATAP 103 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 General Steel Industry v Commissioner for Railways (1964) 112 CLR 125 Hossain v Minister for Immigration and Border Protection [2018] HCA 34 Y v Director-General, Department of Education & Training [2001] NSWADT 149 Texts Cited: Nil Category: Principal judgment Parties: EJE (Applicant) Department of Education (Respondent) Representation: EJE (Self-represented)

Solicitor: Crown Solicitor (Respondent) File Number(s): 2022/00275923 Publication restriction: The publication or broadcast of the name of the applicant is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). The applicant is to be known by the pseudonym "EJE".

Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction 1. The substantive application before the Tribunal is an application by EJE (the applicant) under section 55 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) for an administrative review under section 55(1) of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) of conduct by The Department of Education (the agency) which she alleges was in contravention of an Information Protection Principle contained in Part 2, Division 1, of the PPIP Act. This application was made to the Tribunal on 14 September 2022 (the substantive application). 2. However, the application that is before me for determination is an application by the agency for summary dismissal of the substantive application pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) on the ground that the Tribunal does not have jurisdiction to deal with it. This application was made by an Application for Miscellaneous Matters dated 26 October 2022 (the interlocutory application). The agency also applies for its costs of the substantive and interlocutory applications in the lump sum amount of $2,500.00. 3. For the reasons set out following, I have determined to dismiss the substantive application because the Tribunal does not have jurisdiction to deal with it. The Tribunal has no power to review the conduct of an agency that has not been the subject of an internal review or in deciding to refuse to extend the time for an internal review application to be made. In these respects the application is misconceived. 4. I am not satisfied that I am able to consider the agency's application for costs at this time. Although it was made in the agency's Application for Miscellaneous Matters and has been the subject of submissions by the agency, I am not satisfied that directions made by the Tribunal on 10 October 2022 in relation to the filing of evidence and submissions in response to that application unambiguously put the applicant on notice that the issue of costs would be determined on the material filed by the parties pursuant to those directions. Procedural fairness requires that the applicant is put clearly on notice that the Tribunal will determine the agency's costs application and that she be provided with the opportunity to make any further submission on that issue before a decision is made.

Publication restriction 1. The application was first listed before the Tribunal for a Case Conference on 10 October 2022. On that occasion, the Tribunal, differently constituted, made an order pursuant to s 64(1)(a) of the NCAT Act prohibiting publication of the applicant's name and assigning her the pseudonym "EJE". I have published these orders in these reasons. The issue has not been re-determined by me.

Dispensing with a hearing 1. Section 50 of the NCAT Act sets out the circumstances in which hearings are required in proceedings before the Tribunal. It relevantly provides: 50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except – … (c) if the Tribunal makes an order under this section dispensing with a hearing, … … (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal must not make an order dispensing with a hearing unless the Tribunal has first – (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal; in accordance with the requirements of this Act, enabling legislation and the procedural rules. (5) This section does not prevent the Tribunal from holding a hearing even if it is not required. 1. At the case conference conducted on 10 October 2022 the Tribunal made directions for the parties to file and exchange any evidence and submissions upon which they sought to rely in relation to the "dismissal application". Those directions also directed the parties to indicate in their submissions any view as to whether the dismissal application could be determined on the papers without an oral hearing. 2. Both parties have complied with those directions. The applicant indicates on page 1 of a bundle of documents filed on 4 November 2022 that she does not object to this matter being dealt with on the papers. 3. In its submissions attached to its Application for Miscellaneous Matters the agency submits that this is an appropriate case for the application to be dealt with on the papers because it involves only questions of law, it does not require any witness to give evidence, and there is comprehensive material before the Tribunal which would enable it to decide the interlocutory application in the absence of the parties. I accept these submissions. 4. The agency also submits that dispensing with an oral hearing will reduce its costs of the proceedings. This consideration is also applicable in relation to the applicant. 5. Having regard to the material before me and the submissions of the parties, I am satisfied in accordance with s 50(2) of the NCAT Act that the issues for determination can be adequately determined in the absence of the parties.

Evidence and submissions 1. The following material has been considered in reaching this determination:

Applicant (a) Administrative Review Application Form filed on 14 September 2022 and its annexures, (b) Bundle of documents and submissions filed on 4 November 2022, (c) Bundle of documents and submissions in reply filed on 29 November 2022.

Agency (d) Application of Miscellaneous Matters filed on 26 October 2022 and attached submissions, (e) Bundle of documents filed on 26 October 2022 (s 58 bundle), (f) Submissions in reply filed on 21 November 2022.

Background 1. The dispute between the parties has an extensive history which it is necessary to understand. I am grateful for the chronology of the dispute provided by the agency in its submissions dated 26 October 2022 which is set out below. I do not understand this chronology (to the extent that it is only a chronology) to be controversial. 7. On 23 March 2020, respondent received two applications by the applicant for access to government information under the Government Information (Public Access) Act 2009 ("the GIPA Act"). Each application sought information in relation to one of the applicant's two children, who have previously been given pseudonyms ELN and ELO. 8. On 15 May 2020, the Department decided to grant access to some of the information sought by the applicant. A bundle of documents relating to ELO was released under the reference number GIPA-20-163 and a bundle of documents relating to ELN was released under the reference number GIPA-20-164. 9. On 11 June 2020, the applicant lodged an application for internal review pursuant to s 53 of the PPIP Act, in relation to information recorded in the documents released under the GIPA Act. This application was said to be made on behalf of ELN and ELO. The internal review was ultimately undertaken on behalf of the respondent by Elizabeth Daley, Senior Solicitor at Crown Solicitor's Office (CSO) … 10. On 14 August 2020, the applicant commenced administrative review proceedings in the Tribunal in respect of her complaints relating to each of ELN and ELO (Nos 2020/248473 and 2020/248476). 11. On 17 August 2020, Ms Daley provided a draft of the internal review to the Privacy Commissioner in accordance with ss. 53(5) and 54(2) of the PPIP Act. On 27 August 2020, the Privacy Commissioner advised that the did not intend to make any submissions in the matter… 12. On 27 August 2020, completed her internal review … She concluded that the respondent had not breached any of the information protection principles ("IPPs") under the PPIP Act and recommended that the Department take no further action. 13. On 28 August 2020, the respondent notified the applicant of its decision to take no further action. 14. On 25 September 2020, the Tribunal directed the applicant and her partner ("EJN") to file applications in the names of ELN and ELO to apply to be appointed their guardians ad litem, to specify the parts of the Department's internal review decision with which they did not agree, and to identify the orders they sought … 15. On 1 October 2020, the applicant and EJN filed those applications (Nos. 2020/248213 and 2020/248217)…. 16. On 23 October 2020, John McDonnell of the CSO wrote to the applicant on behalf of the respondent… Mr McDonnell noted that the basis for the applicant's complaints appeared to be that she disagreed with the information in the respondent's records. In an effort to resolve the proceedings, Mr McDonnell invited the applicant to provide statements setting out her views in respect of each of those records. Mr McDonnell indicated that the respondent would attach those statements to its records pursuant to s 15(2) of the PPIP Act. As will become clear, the applicant did not take up that offer at the time. 17. On 27 October 2020, the Tribunal made orders that the various proceedings (Nos 2020/248473, 2020/248476, 2020/248213 and 2020/248217) ("the previous proceedings") be heard together. 18. On 8 December 2020, the respondent filed written submissions in the previous proceedings [vigorously defending them] … 19. On 1 February 2021, the previous proceedings were listed for hearing. … During the course of the hearing, the Tribunal explored the possibility of the applicant providing statements setting out her views and the respondent attaching those statements pursuant to s 15(2) of the PPIP Act. The applicant ultimately withdrew the previous proceedings… 20. On 3 February 2021, the applicant provided statements to the respondent and to the CSO, to be attached pursuant to s 15(2) of the PPIP Act … 1. On 15 February 2021, Ms Cathy Thomas, Legal Officer in the agency's Legal Services Directorate, wrote to the applicant on behalf of the respondent stating: I have received all your emails regarding amendments and am in the process of going through all the documents. I will write to you shortly. Please note the Crown Solicitors Office acted for the Department in your NCAT matter. They have now closed their files, you do not need to contact them, I will be dealing with your amendment documents. … 1. On 1 April 2021, Ms Thomas wrote again to the applicant stating: On 23 October 2020 the Crown Solicitors wrote to you inviting you to provide a statement in respect of each of the records that you said contained inaccurate personal information. They advised that the Department would attach each of the statements to the relevant records. At the time, you did not take up this offer. Following the hearing you then provided some documents that you wished to be attached to the school files. I can now confirm that the relevant Principals have received the annotated information and attached it to their files. … 1. On 7 May 2021 the applicant sent an email to the agency's Legal Services Directorate in which she complained: I am writing to make a complaint about the legal department at department of education. I originally put amendments on 5/06/2020 then again on 2/02/2021 to John McDonnell and to Alexander O'Brien from Crown Solicitors office yet Catherine Thomas is refusing to amend documentation stating I never requested amendments with crown solicitor's office. 1. By letter dated 11 June 2021, Ms Sandra Butler, Senior Legal Officer with the agency's Legal Services Directorate responded to the applicant's complaint stating in part (and relevantly): On 7 May 2021, the Department's Legal Services (Legal Services) received a copy of your emailed complaint about inaction on your request for amendment of documents … In preparing a response to your complaint I have had regard to: • Email exchanges between you and Legal Services, • Email exchanges between Legal Services and the Crown Solicitor's Office (CSO), • Email exchanges between Legal Services and [four schools] • Telephone conversations with the principals of [two schools] Privacy law The relevant privacy legislation governing actions of the NSW Department of Education is the Privacy and Personal Information Act 1998 (PPIP Act). The PPIP Act sets out 12 Information Privacy Principles (IPPs) to be followed by NSW Government agencies when handing the personal information of individuals… IPP 8 is set out at s 15 of the PPIP Act. It requires the Department to amend an individual's information so that it is accurate and is relevant, up to date, complete and not misleading to the purpose for which it was collected. If the Department is not prepared to amend the information, the individual may require the Department to attach a prepared statement on the amendment sought, to relevant documents. If so requested the Department must take reasonable steps to attach the statement. Your requests for internal review and alteration of documents On 23 January 2020 Legal Services received your request for a privacy internal review in which you alleged the department holds false information you and your four children and that the Department unlawfully shared personal information. … After receiving Departmental documents under the Government Information (Public Access) Act (GIPA) you asked for the internal review to address your claims of false school records. Ms Cathy Thomas, legal officer, advised you by email on 5 June 2020, that an internal review was not necessary to correct personal information held by the Department and she provided you with a link to the Department's Application for Alteration of Information. The Department received your request for alteration in 12 emails on 5 June 2020. The request was handled in accordance with the department's procedures which require such requests to be considered by the business centre responsible for the identified documents. …. On 11 June 2020 you submitted a further application for internal review, claiming a breach of privacy and confidentiality, false record keeping and criminal activity relating to s 15 of the PPIP Act. The review was conducted by the Crown Solicitor's Office on the Department's behalf. CSO notified you of the outcome of the review and sent you a copy of the internal review report on 28 August 2020. The review found that the department's conduct did not breach any IPP. In relation to IPP 8 it found there was no basis for a finding that the records the subject of your complaints are false and no action should be taken to amend any personal information, at that point in time. NCAT Proceedings On 14 August 2020 you applied for external review of the department's conduct by NSW Civil and Administrative Tribunal … The applications were heard in NCAT on 1 February 2021. The hearing did not result in a finding of breach of privacy by the Department. The Tribunal encouraged you to submit a request to the Department under s 15(2) of the PPIP Act to annex a prepared statement, setting out your views as to the accuracy of information you disputed. You withdrew your applications and NCAT dismissed the matters. Action after NCAT proceedings Following the hearing, you emailed Legal Services, with cc to CSO, with two bundles of annotated documents, an amended bundle 1 and correspondence relating to your original amendment application on 5 June202. CSO forwarded the bundles of documents they received from you to Legal Services on 15 February 2021. … On 1 April 2021 Ms Thomas wrote to you [as set out above] I have contacted the 4 schools to confirm action taken in response to the request made in Ms Thomas' email of 9 March 2021 … Finding Information obtained during my investigation does not support your claim that Ms Catherine Thomas has refused to amend documentation or has stated that you never requested amendment with the Crown Solicitor's Office. I find this complaint is not substantiated. I base this finding on the following facts: • You have not provided any evidence to support this allegation. • Ms Catherine Thomas is the legal officer who managed your application for alteration and request for annexure of statements to documents. As explained in her email communication with you, it is the business centre where the documents are held which actions your application and request. • Ms Thomas referred your request of 5 June for alteration of documents to the 4 relevant business centres on 24 June, for their consideration. The delay in contacting these business centres was due to the need to clarify the alterations being sought and the relevant business centres where the documents were held. At no time did Ms Thomas refuse to refer your alteration request for consideration by the business centres. • Just 6 days after you submitted your application for alteration you lodged an application for internal review which included an allegation of criminal activity relating to s 15 of the PPIP Act. This allegation concerned false information recorded on documents the subject of your alteration application. The review, conducted by CSO, found there was no basis for finding that the records you identified are false and that no action should be taken to amend any personal information. • The hearing of your applications to NCAT found no breach of an IPP by the Department and the proceedings were dismissed following your withdrawal of the applications. • Your request under s 15(2) of the PPIP Act, for the Department to annex a prepared statement setting out your views as to the accuracy of information you disputed was received on 15 February 2021. Ms Thomas referred the statements to the 4 business centres on 9 March 2021. She received a response from the 3 business centre which held relevant documents, confirming the annotated documents were filed along with the documents to which they refer. • My enquiries of the four business centres confirms that they received Ms Thomas' email of 9 March 2021 and have taken reasonable steps to attach the annotated documents with the documents to which they relate. 1. The applicant was unhappy with the contents of Ms Butler's letter of 11 June 2021 and sent her several emails explaining why. This resulted in Ms Butler providing the applicant with a further response to her complaint which is dated 22 June 2021. It relevantly states: I refer you your emails of 13 June 2021, at 7:42am and 8:03am and 15 June 2021 at 1:32pm sent after you received my email of 11 June 2022, advising of the outcome of my inquiries into your complaint. You raise the following issues in respect of the correspondence. I have responded to each in turn. 1. You did not provide a statement on 15 February 2021 requesting annotations to be added to your file. You request proof of the statement you allegedly provided and a copy of the annotated documentation you provided that held false information Response My email does not state that you provided a statement to Legal Services on 15 February 2021: It states: "Following the hearing you emailed Legal Services, with cc to CSO, with two bundles of annotated documents, an amended bundle 1 and correspondence relating to your original amendment application on 5 June 2020. CSO forwarded the bundles of documents they received from you to Legal Services on 15 February 2021." and "Your request under s 15(2) of the PPIP Act for the Department to annex a prepared statement, setting out your views as to the accuracy of information you disputed was received on 15 February 2021. Ms Thomas referred the statements to the 4 business centres on 9 March 2021. At 1.25pm, 3.14pm, 3.22pm and 5.47pm on 3 February 2021, Legal Services received emails from you addressed to Catherine Thomas cc to John McDonnell. The emails state "I am sharing "annotments" with you – NCAT hearing". Attached to the emails are requested annotations relating to documents you obtained under GIPA20/163 and GIPA20/164 and a copy of documents to which they relate. Ms Thomas forwarded your requested annotations to the 4 business centres to be attached to the relevant documents. A copy of your "annotment" requests is attached. Your annotment requests are referred to as requests for annotation of records in my email At 3.35pm and 3:37pm on 3 February 2021, Legal Services received emails from you addressed to Catherine Thomas to which were attached emails relating to your application for amendment submitted on 5 June 2020. One of the attachments was an email from you to John McDonnell dated 27 October 2020, in which you inform Ms McDonnell that you requested amendment of records but have not received verification that this occurred. You also state "I prefer to continue with Tribunal proceedings." This email follows the case conference held on 27 October 2020, when you indicated that you were not interested in attempting mediation or requesting the Department to take action pursuant to s 15(2) of the PPIP Act. On reviewing the Department's file on your NCAT proceedings I found that Legal Services received the email from CSO attaching your requested annotations on 9 February 2021, not 15 February 2021, as stated in my letter of 11 June 2021. … 3. You never provided annotations nor were you told to do so. You requested amendment. Response As set out above, following the NCAT hearing on 1 February you requested annotations to records in accordance with s 15(2) of the PPIP Act. You made your requests in emails on 3 February 2021, to Legal Services and the CSO. On 9 February 2021, CSO forwarded the emailed requests it received to Legal Services for follow up action. As explained above, your two emails to Ms Thomas on 3 February 2021, referred to amendment of records. It related to your request for amendment received on 5 June 2020. These emails were not treated as a new application for amendment as your original application was subject of an internal review and external review by NCAT. The outcome of both reviews found that the Department's conduct was not in breach of privacy legislation. The NCAT order made at the conclusion of the hearing on 1 February 2021 is: "The Application is dismissed because …(EJE) has withdrawn the application. A copy is attached. In a report on the hearing prepared by CSO for the Department's information it was reported that Senior Member Montgomery encouraged you to make a request under s 15(2) of the PIP Act, for the Department to attach a statement of the amendment sought by you to the records in question, as a way of addressing your concerns about the accuracy of the department's records: [section 15(2) of PPIP Act is then set out] As stated in my email of 11 June 2021, I am satisfied that the Department has taken reasonable steps to attach the annotations (annotments) you provided of the amendments sought to the Department's records. 4. You demand a copy of the documents that's alleged to have annotations that you did not make Response See the attached documents. … 1. On 4 February 2022 the applicant sent two emails to Ms Thomas in short succession. Each email contained the following complaint: I am still awaiting on a copy of annotated documents for my 2 sons … ncat file [file no.] When will I receive a copy of amended documentation? If I do not receive by next week I am doing another gipa application to obtain documentation with annotations … By law I am meant to have been provided with a copy of annotated documentation. 1. By email dated 11 February 2022 Ms Sandra Butler, Senior Legal Officer with the agency's Legal Services Directorate, replied to the applicant's complaints, stating, relevantly, as follows: Your 2 complaints to the Department's Feedback and Complaints inbox have been referred to me for a response. The complaints Complaint 1 received a 5:12pm on 4 February 2022 and complaint 2 received at 5:17pm on 4 February 2022 refer to an email you received from Ms Catherine Thomas on 31 March 2021 in which she states: Apologies for the delay – I will send you a formal letter tomorrow regarding the documents that are attached to files. I needed to confirm that the docs have been placed on the files. You make the following statement in both complaints [as set out immediately above]. Your request for alteration Ms Thomas' email to which you refer related to your request for alteration of information initiated on 5 June 202, your subsequent application for privacy internal review received on 11 June 2020 and the NSW Civil and Administrative Tribunal (NCAT) proceedings you commenced on 14 August 2020. NCAT found the Department's conduct was not in breach of privacy legislation and suggested you request the Department annex a statement from you setting out your view of the accuracy of the information in dispute, in accordance with s 15(2) of the Privacy and Personal Information Protection Act 1998 (PPIP Act). You provided the Department will 2 bundles of annotated documents which were attached to the relevant documents by the various business centres holding the documents. A copy of Ms Thomas' correspondence to you advising that she has received confirmation your annotated documents were attached to school records is attached to this email [the 1 April 2021 letter set out above]. Your previous complaint On 7 May 2021 you complained to Feedback and Complaints in the following terms [the 7 May complaint is set out] This complaint relates to the same facts as those raised in your complaints of 4 February 2022. Response A copy of the response to your complaint of 7 May 2021 is attached. It explains the requirements of s 15(2) of the PPIP Act and action taken to attach your annotated documents to the Department's records This response also addresses the issues raised in your complaints of 4 February 2022. 1. The applicant replied to Ms Butler's email expressing dissatisfaction with her conclusions and requesting her complaints to be "re-addressed". There was further correspondence between the applicant and Ms Butler up to 21 April 2022 in which the applicant requests information about the progress of her "privacy review". On 21 April 2022 the applicant emailed the agency's Legal Services Directorate stating that it she did not receive a response to her 'internal review under PPIP request made on 21 February 2022 she would apply to the Tribunal 'as it's been 60 days tomorrow since I made a request'. 2. That email prompted Ms Margaret Baker from the agency's Legal Services Directorate to seek to confirm with the applicant the conduct of the agency that was the subject of her request for internal review. This resulted in the applicant submitting a 9 page document on 22 April 2022. This document includes the following statements: Previous external review conducted by Crown Solicitor's Office – Elizabeth Daley was not conducted professionally therefore I request all below matters be internally reviewed which includes already addressed content and new content. … yes, I wish to complain … about the "Department of Education lying about the fact that Catherine Thomas stated that [I] cannot continue to converse with CSO in relation to my amendments request then at a later date sent [me] a letter saying I didn't request annotations with CSO" I clearly did request annotations with CSO, a Mr John McDonnell and Catherine Thomas clearly stated I can no longer communicate with CSO as she would be conducting the annotations. … Yes 1. I request an internal review into how personal information has been used by D.O.E. including information for myself … sons …and their father my de-facto partner … (see below personal information I am referring to that requires review. Yes 2. I request an internal review as to why Ms Thomas stated she was conducting annotations when Ms Thomas didn't conduct annotations and provided no reason why annotations would not be conducted. Yes 3. I request an internet (sic) review as to why Sandra Butler stated that I didn't supply any evidence that Catherine Thomas stated she would conduct amendments, stated that I never requested amendments off NSW Department of Education or with John McDonnell from CSO as she (Catherine Thomas) was handling the annotations when I clearly provided evidence via email communication received off Catherine Thomas to Sandra Butler in which Catherine Thomas clearly stated she was conducting annotations and not to request annotations or correspond with CSO in future. I also supplied evidence I had sent annotations request to John McDonnell from Crown Solicitors office at his request … … …yes I want my full legal name … used in all correspondence sent by DOE on future Other issues to be internally reviewed I do not believe the internal/external review was conducted professionally and as stated in paragraph 11 I identified that there was a clear conflict of interest as a government body is conducting a review for myself who represents a government body. I clearly asked nobody from Department of Education conduct an external review and requested an external review so why is it identified as both an internal review and an external review? I require an explanation. GIPA applications 20/163 &20/164 were applied for using [children's full names], yet paragraph 5 of internal review states GIPA applications were made for only [children's first names], no middle or surnames. It is my finding that myself [partner and children's names] have been duplicated within the Department of Education which is apparent due to the fact false information exists not relevant to us and has been recorded on our files. It is clear 2 files exist in names [children's' applicant's and partner's first and surname, and full names] … Documentation obtained under GIPA, dated 15/05/2020 … Issues addressed from internal review response received 27/08/2020 off Elizabeth Daley from Crown Solicitor's Officer whom conducted an internal review at my request. Again received off Sandra Butler on 28/8/2020 from Department of Education. [there are then set out 18 complaints in paragraphs numbered (a) to (r) about information obtained as a result of the applicant's GIPA applications] 1. By letter dated 29 July 2022, Ms Katy Woods, Senior Legal Officer, responded to the applicant's correspondence dated 22 April 2022 insofar as it concerned her internal review request as follows: … Your application for internal review On 22 April 2022, you also made an application for internal review under s 53 of the PPIP Act. … I understand that your request for an internal review is about the same conduct which occurred in 2020 and 2021, including the email you received on 15 February 2021 which said you did not need to contact the CSO. Under section 53(3)(d) of the PPIP Act, requests for internal review must be made within six months of when you first became aware of the conduct in question. I understand you made an application to the New South Wales Civil and Administrative Tribunal (NCAT) on 14 August 2020 and that NCAT Orders were made on 1 February 2021. I am satisfied that your request for internal review is broadly about the same conduct that was considered in the NCAT proceedings. I am therefore satisfied that you were aware of the conduct in question more than six months before you made the application for internal review on 22 April 2022. This means your application is 'out of time'. I have decided that there is no reason for the department to accept your application 'out of time'. This means the department will not be doing an internal review. … 1. Later on 29 June 2022 the applicant responded to Ms Woods' letter advising that she was not satisfied with the outcome and requesting that it be reviewed. A review was conducted by Susan Hynes, Special Counsel with the agency's Legal Services Directorate. The applicant was advised of the outcome of Ms Hynes' review by letter dated 26 August 2022. Insofar as Ms Hynes reviewed Ms Woods decision in respect of the internal review application, she determined as follows: … Having reviewed all of the available material I have determined that the decision made and set out in Ms Wood's letter is correct and stands. I also consider it appropriate to remind you of correspondence you received from Margaret Baker, Legal Services dated 10 March 2022 which also addressed these issues, as follows: Request for a copy of annotated documents It is my understanding that: • You withdrew the application that was before the NSW Civil and Administrative Tribunal (the Tribunal) on 1 February 2021 and as a consequence the proceedings were terminated. • The Tribunal encouraged you to make an application to the NSW Department of Education under section 15(2 of the Privacy and Personal information Protection Act 1998 (PPIP Act). This was not an order directed to the department, but a suggestion made to you by the Tribunal • You asked the Department of Education to amend certain documents it holds Section 15(2) of the PPIP Act states that 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 then "the agency must, if so requested by the individual concerned, take such steps as are reasonable to attach to the information in such manner as it is capable of being read with the information, any statement provided by that individual of the amendments sought." I am instructed that the department was not prepared to amend the documents it holds and has instead attached the statements you have provided to relevant departmental files. This means that the department has not amended any documents and so has no amended documents to provide to you. I note that some correspondence you have received from the department referred to "annotated information." I accept that using this term may have led you to believe that documents were amended, I apologise for any confusion or concern caused to you by the use of that term in correspondence from the department. Having reviewed all of the available material I can confirm that you were informed in the 1 April Letter that your material had been attached to the relevant files as is required by the legislation. The 1 April Letter states the following: "… the relevant Principals have received the annotated information and attached it to their files." In Ms Woods' Letter the Department apologised for the fact that the use of the term "annotated" clearly caused you some confusion. Ms Woods also indicated that staff have received training in the use of plain language to help avoid similar misunderstandings in the future. Given what has occurred, that is, the documents provided by you have been attached to the relevant departmental files, and the original files have not otherwise been altered, it is not possible to provide you with what you are requesting. … 1. In the bundle of documents she filed on 29 November 2022 the applicant explains her 'internal review request' as follows: 1. My internal review request submitted on 21/02/2022 was in relation to letter received off Sandra Butler sent in response to 2 complaints I made to nsw department of education on 04/02/2022 … In this complaint I included email communication received off Catherine Thomas… however Sandra Butler stated I did not supply any evidence. Application to have the response to my complaints investigated was sent on 11/02/2022 at 3:39pm and content I requested to be internally reviewed is contained in the email letter received off Sandra Butler on 11/02/2022 … In particular sentence that states" "you have not provided any evidence to support this allegation". Please also refer to … email sent of 04.02/2022 at 5.04pm making a complaint to Department of education about not having received a copy of any annotated documents. Please also refer to email sent on 11/02/2022 at 3:55pm making another complaint to NSW Department of Education, after I sent this complaint from my email address … I also made a formal internal review request from my other email address … My internal review request contained a request to have this matter addresses – a) Why Sandra Butler states I did not provide any evidence to support my allegation that Catherine Thomas stated she would be conducting amendments. b) Why amendments were not conducted when Catherine Thomas stated amendments would be conducted. … 2. My internal review request was submitted on 21/02/2022 not on 22/04/2022 as [the agency] states in [its] submissions. Clarification, as requested off Margaret Baker on her email dated 22/04/2022 at 5.04pm … of contents I requested to be internally reviewed were sent on 22/04/2022 to Margaret Baker but my original request for internal review was sent on 21/02/2022… In summary, matters in relation to my internal review request sent originally on 21/02/2022 and clarified with NSW Department of Education on 22/04/2022 have not been internally reviewed as requested and that is what these current proceedings are in relation to. These proceedings in no way related to previous matter NCAT file no's 2020/248473, 2020/275923, 2020/248476, 2020/248213 other than the fact Tribunal can find on audio recording of these matter heard on 01/02/2021 that NSW department of education agreed to conduct amendments at this hearing for myself …(EJE) my partner … (EJN) who is father of our 2 biological sons .. (ELO) and … (ELN)… … I made an internal review request on 21/02/2022 which was only 10 days after I received a letter and emails off Sandra Butler which contained the response to my complaint with which I was not satisfied with so made an application for internal review … It is also clear Sandra Butler merely attached a letter from 11/06/2021, that was sent to my then used email … to email she sent on 11/02/2022 which Sandra Butler clarified … however added to that document was the mention of Sandra Butler stating I did not supply any evidence that Catherine Thomas would be conducting amendments… Furthermore even if my internal review application was not officially acknowledged until I sent clarification of what I requested to be internally reviewed on 22/04/2022, after receiving a letter from Margaret Baker from NSW department of education requesting clarification of what I wanted internally reviewed, this is still well within 6 months as I received the letter containing content I requested to be internally reviewed off Sandra Butler on 11/02/2022, which means that only 2 months and 11 days passed from time I received letter containing content I requested to be internally reviewed and time I applied for an internal review with NSW department of education.

Contentions of the parties

Agency 1. The agency contends that the Tribunal does not have jurisdiction to conduct an administrative review of the matters referred to in the applicant's Application for Administrative Review. That is because: a. these matters concern personal information that the applicant first became aware of on 15 May 2020 when the agency granted access to some documents sought by the applicant under her GIPA Act access application, and b. action taken by the agency in relation to the attachment of information provided by the applicant to personal information held by the agency which was confirmed in a letter to the applicant from the agency dated 1 April 2021 (a and b together "conduct"), and c. the applicant did not make a request for an internal review of that conduct until 22 April 2022, which was more than six months after the applicant became aware of the conduct, and d. the agency refused to allow any further time for the applicant to make her request for internal review, and e. the Tribunal has no jurisdiction under the PPIP Act to conduct an administrative review of conduct by an agency that has not been the subject of an internal review, and f. the Tribunal has no jurisdiction under the PPIP Act, or otherwise, to review the agency's decision to refuse to allow a person further time to make an internal review application. 1. The agency submits that for these reasons the Application for Administrative Review is misconceived because it is founded on a misunderstanding of legal principle. It also submits that it is lacking in substance because it is founded upon an untenable proposition of law. Additionally, the agency submits that the Application for Administrative Review is vexatious because it is an attempt to relitigate a matter that has already been determined. It submits that it ought to be summarily dismissed for each of these reasons.

Applicant 1. The applicant contends that the Tribunal does have jurisdiction to conduct an administrative review in relation to the matters referred to in her Administrative Review Application. That is because: a. these matters have arisen since her withdrawal of the previous proceedings, and b. the conduct of the agency in relation to which she sought an internal review was contained in the agency's response dated 11 February 2022 to two complaints she made on 4 February 2022 (the complaint outcome), and c. she first requested an internal review of that conduct by the agency in an email to the agency dated 21 (11?) February 2022 in response to the complaint outcome, and d. she elaborated her request for an internal review of that conduct in response to enquiries made by the agency on 22 April 2022, and e. 21 February 2022 and 22 April 2022 are both within six months of 11 February 2022 (being the date she became aware of the conduct) which obliged the agency to conduct an internal review of that conduct in accordance with her request and s 53 of the PPIP Act, and f. by letter dated 29 July 2022, the agency refused to conduct an internal review of the conduct (the first refusal), a decision which was affirmed by the agency on review by letter dated 26 August 2022 (the final refusal), and g. she lodged her Application for Administrative Review with NCAT on 14 September 2022 which was within 28 days of the agency's final refusal to conduct an internal review of the conduct. 1. The applicant submits that for these reasons the agency's application for summary dismissal should be refused and her Application for Administrative Review should be set down for hearing.

Applicable law

The NCAT Act and Rules 1. Part 3 of the NCAT Act establishes the jurisdiction of the Tribunal. It provides, relevantly, in s 28(1), that the Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under the NCAT Act or any other legislation. This includes, pursuant to s 28(2)(b) the administrative review jurisdiction of the Tribunal. 2. Section 30 of the NCAT Act establishes the administrative review jurisdiction of the Tribunal. It provides: 30 Administrative review jurisdiction (1) The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has "administrative review jurisdiction" over a decision of an administrator. Note: See section 9 of the Administrative Decisions Review Act 1997 (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its administrative jurisdiction – (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act, the Administrative Decisions Review Act 1997 or enabling legislation in connection with the conduct or resolution of such proceedings. (3) An "administratively reviewable decision" is a decision of an administrator over which the Tribunal has administrative review jurisdiction. Note: See section 7 of the Administrative Decisions Review Act 1997. (4) An "administrator", in relation to an administratively reviewable decision, is the person or body that makes (or is taken to have made) the decision under enabling legislation. Note: See section 8 of the Administrative Decisions Review Act 1997. (5) An "administrative review decision" of the Tribunal is a decision of the Tribunal determining a matter over which it has administrative review jurisdiction. (6) An "administrative review application" is an application made to the Tribunal for an administrative review decision. 1. Part 4 of the NCAT Act sets out the practice and procedure of the Tribunal. 2. Division 1 of that Part deals with the commencement of proceedings. Section 39 in that Division explains what constitutes "an application": 39 What constitutes an application For the purposes of this Act, an "application" to the Tribunal includes a complaint, referral or other mechanism (however expressed) by means of which enabling legislation provides for a matter to be brought to the attention of the Tribunal for a decision. 1. Section 55 in that Part deals with the dismissal of proceedings. It relevantly provides: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances – (a) if the applicant or appellant (or if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate, (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, … 1. Part 6 of the Civil and Administrative Tribunal Rules 2014 (NSW) deals with the commencement of proceedings. Rule 24 in that Part provides relevantly: 24 Administrative Review Applications (1) An administrative review application must be – (a) in or to the effect of the approved form, and (b) duly completed, and (c) lodged at the Registry, and (d) accompanied by the applicable fee (if any) for the application. … (3) Unless the Tribunal grants an extension under section 41 of the Act an application must be made – (a) in the case where the enabling legislation specifies the period within which the application is to be made – within the period specified, or (b) in any other case – by the end of the default application period. (4) The "default application period" for the purposes of subrule (3)(b) is – … (a1) in the case of an administrative review application under section 55 of the Privacy and Personal Information Protection Act 1998 – the period of 28 days after – (i) if an internal review under section 53 of that Act is completed within 60 days from the day on which the application for the internal review was received by the public sector agency concerned – the day on which the applicant was notified of the result of the internal review (whichever is the later), or (ii) if an internal review under section 53 of that Act is not completed within that 60 day period – the day on which the 60 day period expires or the day on which the applicant was notified of the result of the review (whichever is the later) …

The ADR Act 1. Part 1 of the ADR Act deals with several Preliminary matters for that Act including, in section 6, the meaning of "decision": 6 Meaning of "decision" (1) General meaning: A "decision" includes any of the following: (a) making, suspending, revoking or refusing to make an order or determination, (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission, (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument, (d) imposing a condition or restriction, (e) making a declaration, demand or requirement, (f) retaining, or refusing to deliver up, an article, (g) doing or refunding to do any other act or thing. (2) Decision made under enabling legislation: For the purposes of this Act, a decision is made under enabling legislation if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enabling legislation. … (5) Failure to make a timely decision taken to be failure to make a decision: For the purposes of this Act, a failure by a decision-maker to make a decision within the period specified by the enabling legislation concerned for making the decision is taken to be a decision by the decision-maker at the end of the period to refuse to make the decision. 1. Part 2 of the ADR Act deals further with NCAT's administrative review jurisdiction. Section 7 in that Part contains the meaning of an "administratively reviewable decision": 7. Meaning of "administratively reviewable decision" (1) An 'administratively reviewable decision" is a decision of an administrator over which the Tribunal has administrative review jurisdiction.. (2) For the avoidance of doubt (and without limiting subsection (1) or section 6): (a) the conduct of an administrator (or refusal by an administrator to engage in conduct) is an administratively reviewable decision if enabling legislation identifies that conduct or refusal as conduct or refusal over which the Tribunal has administrative review jurisdiction, and (b) in its application to any such conduct or refusal by an administrator, any reference in this Act (however expressed) to an administrator making an administratively reviewable decision includes a reference to an administrator engaging or refusing to engage in the conduct. 1. Section 9 of Part 2 explains the circumstances in which administrative review jurisdiction is conferred. It provides, relevantly: 9 When administrative review jurisdiction is conferred (1) The Tribunal has "administrative review jurisdiction" over a decision (or a class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator: (a) in the exercise of functions conferred or imposed by or under the legislation, or (b) in the exercise of any other functions of the administrator identified by the legislation. … (5) Nothing in this section permits administrative review jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act. 1. Section 55 of the ADR Act concerns the making of applications for administrative review pursuant to that section. It provides, relevantly: 55 Making of applications … (3) If the interested person was entitled to seek an internal review of the administratively reviewable decision, an application may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised under section 15(9). (4) However, the Tribunal may deal with an application for administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that: (a) the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned, or (b) it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned. (5) In determining whether a late application for internal review was unreasonable refused or whether an application to the Tribunal was made within a reasonable time for the purposes of subsection (4), the Tribunal is to have regard to: (a) the time when the applicant became aware of the making of the decision, and (b) in a case to which subsection (4)(a) applies – the period prescribed by or under section 53 for the lodging of an application for an internal review, and (c) such other matters as it considers relevant. …

The PPIP Act 1. Part 2 of the PPIP Act contains the Information Protection Principles (IPPs). Relevantly s 15 deals with the alteration of personal information at the request of the individual to whom it relates: 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 hat 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. 1. Part 5 of the PPIP Act provides for the internal and administrative (or external) review of certain conduct of agencies. It provides, relevantly: 52 Application of Part (1) This Part applies to the following conduct – (a) the contravention by a public sector agency of an information protection principle that applies to the agency, (b) the contravention by a public sector agency of a privacy code of practice that applies to the agency, (c) the disclosure by a public sector agency of personal information kept in a public register. (2) A reference in this Part to conduct includes a reference to alleged conduct. 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 … … (2) The review is to be undertaken by the public sector agency concerned. (3) An application for review must – (a) be in writing, (b) be addressed to the public sector agency concerned, and … (d) be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application … … … 55 Administrative review of conduct by Tribunal (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 (b) the action taken by the public sector agency in relation to the application, the person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1999 of the conduct that was the subject of the application under s 53 (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 – …

Consideration 1. It is well established law that an application ought not to be decided in a summary way other than in the clearest of cases and with exceptional caution. In considering an application for summary dismissal, the substantive applicant's case must be taken at its highest. It falls to the summary dismissal applicant to establish that the substantive applicant's case is so obviously untenable that it cannot succeed, is manifestly groundless, or discloses a case which the court is satisfied cannot proceed: General Steel Industry v Commissioner for Railways (1964) 112 CLR 125; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256. 2. It must be accepted that an absence of jurisdiction (power) to deal with an application is a clear case where summary dismissal of an application is appropriate. It would be a jurisdictional error for the Tribunal to purport to exercise power that it does not have in dealing with such an application: Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [23]-[31], [40], [42]-[44] and [62]-[80]. 3. NCAT's jurisdiction is statutory only, not at large. It only has power to exercise administrative review jurisdiction in relation to an administratively reviewable decision designated by enabling legislation: s 30(1) and (3) of the NCAT Act and s 9 of the ADR Act. Despite the breadth of the words found in section 39 of the NCAT Act "an application" can only be before the Tribunal if the enabling legislation provides for a matter to be brought to the attention of the Tribunal for decision. That is the case even though a person may have correctly completed the procedure for submitting an Application for Administrative Review pursuant to rule 24 of the NCAT Rules, including by paying an application fee. If the enabling legislation does not permit the matter to be brought to the attention of the Tribunal, the application will be of no effect: Y v Director General, Department of Education and Training [2001] NSWADT 149 (Y) at [74]. 4. The PPIP Act is enabling legislation. Section 55(2) of that Act provides that NCAT has the power to conduct an administrative review of the "conduct" of the public sector agency that was the subject of an internal review conducted under s 53 of that Act. This involves a "two-step process": BQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 64 (BQ) at [17]: 17. In short, the Privacy Act provides for a two-step review process. A person aggrieved by certain conduct, as defined by a 52(1), may apply to the relevant agency for internal review of that conduct within six months of becoming aware of the conduct in question. If the person is not satisfied with "the findings of the review or the action taken by the agency in relation to the application", the applicant may apply to the Tribunal for a review of the conduct the subject of the application for internal review. 1. With respect to the first step, certain mandatory requirements must be met, as is denoted by the word "must" in the chapeau of s 53(3). They include that the internal review application "be lodged … within 6 months (or such later date as the agency may allow) from the time the applicant became aware of the conduct the subject of the application". In BQ the Tribunal said at [25]: 25. … The wording of the provision is clear and unambiguous "an application for such review must … be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) …" The fact that power is conferred on the agency to waive the time limit does not extinguish the requirement. It merely confers a power on the agency to accept a late application at its discretion. … 1. If there has been no internal review conducted under s 53 of the PPIP Act the second step of the two-step process cannot be reached. That is because s 55(1) only permits the Tribunal to conduct an administrative review in relation to the "findings" of an internal review or of "action taken" by the public sector agency in relation to the internal review application with which the applicant is not satisfied: CCM v Western Sydney University [219] NSWCATAP 103. 2. The words "action taken" do not enable the Tribunal to review an agency's decision not to extend the time in which an internal review application can be made. In this respect, in BQ the Tribunal said at [26]: 26. If the agency decides to accept an application out of time such application constitutes a competent application for the purpose of s 53(1) and as such is a reviewable decision under s 55(1). If however the agency declines to do exercise its discretion, the application does not satisfy s 53(3) and cannot be considered a competent application. 1. Similarly, in Y the Tribunal said at [69]-[73]: 69. In my view, 'an action' taken by an agency 'in relation to an application' can only refer to an action taken in relation to a competent application, There can be no competent application if a time requirement … affecting lodgement is not met…. … 73. Where it is found, or there is no dispute, that the application for internal review is out of time, the agency has, I consider, a discretion to refuse to accept the application which is not amenable to consideration by the Tribunal. 74. If the agency does accept the application out of time, then its further actions are subject to the possibility of review by the Tribunal. As I read s 55 it is not referring simply to the 'application' as made by the applicant but to an application which attracts the internal review jurisdiction of the agency, i.e. what I have described as a competent application… 1. In this respect, the Tribunal's powers to conduct an administrative review under s 55 of the PPIP Act are narrower than those conferred by s 55 of the ADR Act which do permit the Tribunal to conduct an administrative review where there has not been an internal review in certain circumstances (see also ss 6 and 7 of that Act with respect to the scope of 'decision' that may be reviewed under that Act). In Y the Tribunal observed at [74] that this reflects a legislative choice: 74. …. This is an Act which has numerous boundaries on the scope of its operation (for example statutory exclusions in respect of the meaning of "personal information", statutory exclusions of areas of conduct and in in some instances entire agencies, powers of exemption from compliance vested in the Commissioner. A limitation affecting Tribunal jurisdiction to review refusal to entertain out of time applications is simply another example. 1. Although for the reasons stated above it does not fall to the Tribunal to review that matter, the agency's conduct in concluding that the applicant first became aware of the conduct that was the subject of her internal review request more than six months before the internal review request was made is plainly correct. That is the case whether time is taken to run from 21 (or 11) February 2022 or 22 April 2022. 2. The applicant first became aware of the contents of the documents that were released to her pursuant to her GIPA Act access application at the time she was given access to this information on 15 May 2020. That was 21 months before February 2022 and 23 months before April 2022. 3. The applicant first became aware of the agency's conduct in relation to the 'amendment' of its file records when she withdrew her previous proceedings on 1 February 2021 on the basis that the agency would attach statement provided by her to the disputed information. The completion of that task was confirmed by Ms Thomas in writing to the applicant on 1 April 2021. This conduct was therefore at least 10 months before February 2022 and at least 12 months before April 2022. 4. The applicant appears to conduct her case on the basis that the limitation period for an internal review runs from the time a 'complaint' is made about conduct and starts again every time a new complaint is made about the same or similar conduct. This understanding is plainly misconceived. Section 53(3)(d) clearly provides that a request for an internal review must be lodged within six months of the 'conduct' that is impugned by the internal review application. 5. For the foregoing reasons the applicant's Administrative Review Application is 'misconceived' within the meaning of s 55(1)(b) of the NCAT Act because it is based upon a fundamental misunderstanding of legal principle: Alchin v Rail Corporation NSW [2012] NSWADT 142 at [25]-[26]. The Tribunal does not have jurisdiction under the PPIP Act to conduct an administrative review of conduct of an agency that has not been the subject of an internal review, and it has no jurisdiction to review a decision of an agency to refuse to extend the time within which an internal review application may be made. The applicant's Administrative Review Application must therefore be dismissed.

Costs 1. As I have already stated, the agency applies for its costs of the proceedings (both the substantive and interlocutory applications). That application was made in the Application for Miscellaneous Matters (it is order 2 of the "Orders Sought"), and it has been the subject of submissions by the agency. 2. It's clear the applicant is on notice as to the agency's costs application. She refers to it in the submission she filed on 4 November 2022. However, that reference is limited to the following statement: I dispute [the agency's] demand that I pay for these proceedings as based on my evidence identified throughout these submissions I have not done anything wrong by applying to NCAT for review. 1. Despite the applicant's reference to the issue of costs in her submissions, I am not satisfied that she is unambiguously on notice that the issue of costs is to be determined on the material filed in response to the procedural directions made by the Tribunal on 10 October 2022. Those directions only direct the parties to file and exchange evidence and submissions in relation to "the dismissal application". The directions do not refer to the issue of costs. 2. To ensure procedural fairness to the applicant, and out of an abundance of caution, I will therefore make further procedural directions that enable the applicant to file and serve any further submission she wishes to make on the issue of costs before I determine the issue. The respondent may also make a further submission on costs strictly by way of reply to any submission made by the applicant. I propose to dispense with a hearing on the issue of costs in accordance with s 55(2) of the NCAT Act. If either party contends for an oral hearing of the costs application, they are to set out the reasons why they contend this is appropriate in their submissions.

Orders 1. For the foregoing reasons I make the following orders: 1. A hearing of the respondent's Application for Miscellaneous Matters (summary dismissal) filed on 26 October 2022 is dispensed with in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The applicant's Application for Administrative Review is dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) on the basis that it is misconceived. 3. The question of costs is reserved. 4. If the applicant wishes to make any further submission on the issue of costs, she must give that submission to the Tribunal and the agency by 9 June 2023. 5. The agency may make any further submission on the issue of costs, strictly limited to reply, by 16 June 2023. 6. The Tribunal proposes to dispense with a hearing on the issue of costs pursuant to s 55(2) of the Civil and Administrative Tribunal Act 2013 (NSW). If either party contends a hearing is required they are to set out their reasons in their submissions.

********** 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: 31 May 2023