JW v Pittwater Council [2009] NSWADT 4

CITATION: JW v Pittwater Council [2009] NSWADT 4

DIVISION: General Division

APPLICANT JW PARTIES: RESPONDENT Pittwater Council

FILE NUMBER: 083317

HEARING DATES: 9 December 2008

SUBMISSIONS CLOSED: 9 December 2008

DATE OF DECISION: 9 January 2009

BEFORE: Higgins S - Judicial Member

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Local Government Act 1993 Privacy and Personal Information Protection Act 1998

Vassiliou and anor v Chief Commissioner of State Revenue [2008] NSWADT 15 Protogerous v Fouzas [2004] NSWADT 62 CASES CITED: Randi Wiks Pty Ltd v Pokana Pty Ltd [2003] NSWADTAP 27 Sarip Investments Pty Ltd v Uno Uno Pty Ltd [2004] NSWADT 27 EG (No 2) v Commissioner of Police, NSW [2004] NSWADT 226 B & L Linings & anor v Chief Commissioner of State Revenue [2008] NSWADTAP 14

APPLICANT: P Magee, solicitor REPRESENTATION:

RESPONDENT: S Puckeridge, solicitor

1. The Tribunal has jurisdiction to hear and determine this application 2. The respondent's conduct is remitted for re-consideration under section 65 of the Administrative Decisions Tribunal Act 1997 3. On or before 30 January 2009, the applicant to file and serve a document which sets out: ORDERS: (a) the orders she seeks pursuant to section 55(2) of the Privacy and Personal Information Protection Act 1998, and (b) the basis/evidence on which the orders are sought. In the event a compensation order is sought, the nature of the alleged loss giving rise to the compensation sought and the evidence in support of that loss should be included 4. On or before 27 February 2009, the respondent to file and serve its determination following its re-consideration 5. The matter set down for a further planning meeting on Monday, 16 March 2009 at 9:30 a.m.

REASONS FOR DECISION

Introduction

1 The applicant (JW) has made an application seeking review of conduct of the respondent (Pittwater Council), which she alleges was a breach of her privacy under the Privacy and Personal Information Protection Act 1998 ('the PPIP Act').

2 The respondent contends that the Tribunal has no jurisdiction to hear and determine JW's application as JW had failed to make her application for internal review under the PPIP Act within the time prescribed in that Act. JW contends that she did make her application within the prescribed time and even if it was made outside the prescribed time (which was not admitted) the respondent had accepted her internal review request and having accepted the request the respondent was bound to deal with the request and as it failed to determine the request within the prescribed time this gave rise to the Tribunal having jurisdiction to hear and determine this application.

3 At the request of the parties the Tribunal agreed to determine, as a preliminary issue, the question as to whether the Tribunal has jurisdiction to hear and determine JW's application.

The relevant legislation

4 The Tribunal's jurisdiction to hear and determine an application in regard to conduct of an agency contrary to the provisions of the PPIP Act arises from section 38 of the Administrative Decisions Tribunal Act 1997 and section 55 of the PPIP Act.

5 For the purposes of this application the relevant provision is section 55(1) of the PPIP Act which relevantly provides: "55 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,

that the person may apply to the Tribunal for a review of the conduct that was the subject of the application under section 53. "

6 Section 53(1) of the PPIP Act gives a person who is aggrieved by the 'conduct of a public sector agency a right to make an application to seek review of that conduct'. The term 'conduct' is defined in section 52(1) of the PPIP Act. It includes 'conduct' that is a 'contravention by a public sector agency of an information protection principle that applies to the agency'.

7 The term 'information protection principle' is defined in section 3 of the PPIP Act to mean the provisions set out in Division 1 of Part 2 of that Act: see sections 8 to 19 of the PPIP Act. These provisions provide for the manner in which a public sector agency is to collect, store, secure, use and disclose personal information.

8 Sub-section 53(3) of the PPIP Act sets out what an applicant must do to make an application for review of an agency's conduct and sub-sections 53(4) to (8) sets out how an agency is to deal with an application once it has been received by the agency. These sub-sections relevantly provide: " 53 Internal review by public sector agencies (1) …

(2) …

(3) an application for such a review must: (a) in writing, and

(b) be addressed to the public sector agency concerned, and

(c) …, and

(d) be lodged at an office of the public sector agency within six months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application, and

(e) ... (4) … the application must be dealt with by an individual within the public sector agency who is directed by the agency to deal with the application. That individual must be, as far as is practical, a person: (a) who was not substantially involved in any matter relating to the conduct the subject of the application, and

(b) who is an employee officer of the agency, and

(c) who was otherwise suitably qualified to deal with the matters raised by the application. (5) …

(6) the review must be completed as soon as is reasonably practicable in the circumstances. However, if the review is not completed within 60 days from the day on which the application was received, the Applicant is entitled to make an application under section 55 to the Tribunal for a review of the conduct concerned."

Issues 9 This preliminary application of the respondent raises two issues:

(a) did JW make her application for review within the prescribed time as required under paragraph 53(3)(d) of the PPIP Act? and

(b) in the alternative, did the respondent allow for a later date as per paragraph 53(3)(d)?

10 Both issues are ultimately a question of fact and if either are answered in the affirmative this will be sufficient to give the Tribunal jurisdiction to hear and determine JW's application for review.

Evidence 11 The respondent tendered into evidence a bundle of documents, which included JW's internal review request (dated 19 May 2008) and other relevant correspondence following this request between the respondent and JW and their respective legal advisers.

12 JW tendered into evidence an affidavit sworn by her solicitor, Peter McGee. Attached to this affidavit were copies of some of the same correspondence that was included in the respondent's bundle.

13 The conduct of which JW complained was the disclosure by the respondent of a written complaint she had made to the respondent, in June 2005, about a third party. The disclosure is alleged to occurred in July 2006 in response to an application under section 12 of the Local Government Act 1993 by the third party. A copy of the third party application under that section was document 1 in the respondent's bundle of documents. The application requested 'all correspondence and documents relating to approvals and use in respect of' a property at Whale Beach.

14 The third party allegedly attached the documents provided by the respondent under the section 12 application (including JW's written complaint) to an affidavit sworn by him on 18 June 2007. In early July 2007, the third party tendered this affidavit as evidence in proceedings before the Supreme Court of New South Wales. JW and the third party's company were a party to these proceedings. The Tribunal has been informed by JW that disclosure of her written complaint had a detrimental effect on her in those proceedings.

15 In his affidavit, Mr McGee, said that he provided JW with a copy of the affidavit of the third party shortly after it was served on him, in July 2007. Mr McGee also acted for JW in the Supreme Court proceedings. At paragraph [4] of his affidavit Mr McGee went on to say: 'I am instructed and do verily believe that [JW] first became aware of any issue in relation to the breach of her privacy as evidenced in [the 18 June 2007 affidavit] on or around 24 April 2008. She brought the matter to the attention of Pittwater Council (and "Council") by email dated 1 May 2008 and received a response by letter from Council dated 8 May 2008.'

16 The Tribunal has not been provided with a copy of JW's email of 1 May 2008. However, a copy of the respondent's response of 8 May 2008 was attached to the affidavit of Mr McGee and it was included in the respondent's bundle. Warwick Lawrence, Acting Manager Business & Administration of the respondent wrote the response. In this response he confirmed the advice he had given to JW on 24 April 2008. That advice being that 'section 12 of the Local Government Act 1993 does not allow release of a complainant's details to a third party.'

17 On 19 May 2008, JW wrote to a Mr James. In that letter JW said: 'My question relates to what protection does Pittwater Council offer to a person or persons who notified their concerns in good faith to the Council by means of phone or letter.

On the 6 July 2006 a request was made by for access to Public Documents under Section 12, Local Government Act 1993. Pittwater Council has advised me that this Act does not allow release of complainant's details to a third party.

However it has come to my attention that Council responded to this request releasing unrelated documents and in particular a copy of Customer Actioning System document numbered 20056512. Council did not blacken out my name and address. ...'

18 JW then went to on assert that the release of her details to a third party pursuant to section 12 was a breach that could result in a fine of up to $40,000. She then called on Mr James to undertake 'a full and impartial investigation of the disclosure'.

19 On 21 May 2008, the respondent's General Manager, Mark Ferguson, responded to JW's request. In his letter he said as follows: 'Dear Madam,

Re: Privacy Complaint

In response to your written complaint dated 19 May 2008 I advise that Council is fully aware of its obligations and responsibilities in regard to the operations of the Freedom of Information Act 1989 (FOI), Privacy and Personal Information Protection Act 1998 (PPIPA) and section 12 of the Local Government Act 1993 (LGA) and other Acts relating to the collection, storage and excess to personal and public information held by Council.'

…

The claims that you have publicly made are of great concern to me as a release of a complainant's personal details may be a breach of Information Protection Principles 11 and in accordance with my responsibilities under the PPIP Act Council is required to undertake an internal review of your complaint and to advise privacy NSW of your complaint and the findings of the review.

As section 12 applications are determined by Customer Service Staff I have appointed Council's public officer, Mr Warwick Lawrence to undertake the internal review due to his impartiality, and he may be contacted on …

It is intended that the Council review will be completed by 20th June 2008 however if the review is not completed by 18 July 2008 you may refer your complaint to the Tribunal for external review.

I will forward a copy of this letter to the NSW Privacy Commissioner for their oversight role.'

20 On 22 May 2008, Mark Ferguson wrote to the Privacy Commissioner and enclosed a copy of the abovementioned letter. In his covering letter he said: '...[An] internal review of the complaint will be undertaken in accordance with the provisions of the Privacy and Personal Information Protection Act 1998 and a copy of Council's correspondence to [JW] in relation to this matter is also enclosed. ...'

21 Some days later there were email and telephone communications between JW and Mr Lawrence, which was followed by correspondence from JW's solicitor Mr McGee. On 16 June 2008, Mr Lawrence wrote to Mr McGee. In that letter Mr Lawrence said: '... [My] investigations have revealed that a number of document containing [JW's] personal information were released to an applicant under Section 12 of the Local Government Act 1993 and I believe such documents may have been released due to the fact that they formed part of a development application file.

Given that you have indicated that your client anticipates making an appropriate application for relief and damages if not satisfied with the outcome of the review I intend to seek legal advice in relation to this matter prior to finalising the internal review process. ...'

22 On the same day, Mr Lawrence wrote to the Privacy Commissioner advising the outcome of his investigation and that he would inform the Commissioner of his 'findings, based on legal advice, in due course.'

23 The respondent then instructed the firm of solicitors, Mallesons Stephen Jaques, to act on its behalf and there was further correspondence between these solicitors and Mr McGee. It is unnecessary to repeat the content of these letters other than to say that they centred on the issue as to when JW first became aware of the conduct for which she sought review. On 27 August 2008, Mr McGee advised that he had been instructed by JW that she became aware of the alleged breach on or about 24 April 2008 and that she had contacted the respondent immediately upon becoming so aware.

24 On 24 September 2008, Mr Lawrence responded to JW's privacy complaint by stating that the Council had no legal obligation to conduct an internal review of JW's complaint as she had failed to exercise her 'right to an internal review within the six month time period available under the Act.' Mr Lawrence said the solicitors of the third party in the Supreme Court proceedings had informed him that the affidavit to which the document of which JW complains was attached was served on her on 20 June 2007. This he pointed out was almost 12 months prior to JW making her request for internal review.

Consideration 25 I have considered each matter in issue separately and my findings are set out below.

(a) Did JW make her application for review within the prescribed time?

26 As mentioned above, paragraph 53(3)(d) of the PPIP Act requires an application for internal review to be made within 6 months of the applicant becoming aware of the conduct that is the subject of his/her application.

27 There is no dispute that JW became aware of the contents of the affidavit of the third party, including the attached unedited copy of her 2005 written complaint, in July 2007. If this is taken as the date on which JL became aware of the conduct of the respondent in responding to the third party's request for documents under section 12 of the Local Government Act 1993, then her application for internal review was 4 months outside the time prescribed in paragraph 53(3)(d).

28 However, JW contended that this was not the time she became aware of the respondent's alleged contravening conduct under the PPIP Act. She asserts that this did not occur until April 2008 and she relied on the evidence of Mr McGee in support of this: see paragraphs [15] and [22] above.

29 In my opinion, as indicated during the course of the hearing, in light of the uncontradicted evidence that JW became aware of the contents of the affidavit (including her complaint) some 9 months previously, little probative weight could not be given to this evidence to make a finding that JW did not, as a matter of fact, become aware of the respondent's contravening conduct until some time in April 2008. It was clearly hearsay evidence and while the Tribunal is not bound by the rules of evidence JW's contention being a material fact to the finding of jurisdiction the most reliable evidence would have been her evidence on this issue. Mr McGee indicated that JW would give that evidence, however Ms Puckeridge, solicitor for the respondent, objected to JW giving evidence during the hearing as she had been given ample opportunity to put on that evidence, which she chose not to do. The hearing proceeded without JW giving evidence, but I indicated that if I found that her evidence was critical to the matters in issue in this preliminary application I would allow that evidence. In light of my findings on the second issue it is unnecessary for me to do so. 30 Accordingly, on the material before the Tribunal, I find that JW did not make her application for review under section 53 of the PPIP Act within the time prescribed under paragraph 53(3)(d) of that Act.

(b) Did the respondent allow JW to make her application for review at a later date?

31 In my opinion, on the basis of the contents of the letters from Mr Ferguson to JW (21 May 2008) and the Privacy Commissioner (22 May 2008), from the time the respondent received JW's application for an investigation into its conduct in releasing JW's complaint to the third party it accepted the application and dealt with it in accordance with the internal review provisions of the PPIP Act. That is, by inference from the manner in which it initially dealt with the application it allowed JW to lodge her application at the later date it was in fact received.

32 Paragraph 53(3)(d) of the PPIP Act does not contain any formal requirements that must be met by an agency before it can be found to have allowed an applicant for internal review to lodge his/her application outside the prescribed time. As the PPIP Act is beneficial legislation, in my opinion, whether an agency has allowed an applicant for review to lodge his/her application outside the time prescribed can be inferred from its conduct after the agency has received an application for review.

33 In this case, JW's application was accepted by the most senior employed officer of the respondent, the General Manager. It was at all times open to him to refuse to accept the application on the basis that it was or may be out of time. This he did not do. Instead he nominated the officer who would be responsible for 'dealing' with her application for review and advised JW that her application for review would be dealt within a specified period of time and if it was not dealt with within the 60 day period she had a right of review to the Tribunal.

34 The submissions of the solicitor for the respondent contended that the respondent had at no stage allowed JW to lodge her application for internal review at a later date. In support of this contention they rely on the correspondence of Mr Lawrence which sought information about when JW became aware of the conduct she was complaining about. However, no reference was made to the earlier correspondence of Mr Ferguson, the General Manager, to JW and the Privacy Commissioner. In my opinion, on the basis of these letters it was not open to Mr Lawrence to then reject the JW's review application as being out of time. This does not mean that the questions he asked were irrelevant to the issues he was required to address in dealing with the application. It is noted that it was only after he obtained legal advice that he determined to reject JW's review application on the basis it was out of time.

35 Accordingly, I find on the material before the Tribunal that the respondent did allow JW to lodge her application for review out of time (i.e. at a date later than that which is prescribed in paragraph 53(3)(d) of the PPIP Act).

Conclusion and further conduct of these proceedings

36 On the basis of my finding that the respondent allowed JW to lodge her application for review out of time, I also find on the material before the Tribunal that the respondent failed to complete its review of JW's application within the 60 days prescribed sub-section 53(6) of the PPIP. JW having made her application for external review after this 60 day period, I find that the Tribunal has jurisdiction to hear and determine JW's application for review of the respondent's conduct.

37 In my opinion, even though having found that the Tribunal has jurisdiction to hear and determine JW's application for external review, it is appropriate to remit the matter to the respondent for re-consideration under section 65 of the Administrative Decisions Tribunal Act 1997 as the respondent has not given any consideration to the merits of JW's application for review. Remitting the matter will also provide an opportunity for the parties to explore agreement on some or all of the matters in issue.

38 However, in order for the respondent to properly re-consider the matter JW needs to provide it with further information about the type of orders she is seeking under section 55(2) of the PPIP Act and the basis on which these are sought. In some cases she may not be able to identify the exact nature of the order sought until the respondent has conducted a proper review of the conduct complained of. However, if JW seeks a compensation order she should identify this and the grounds on which such an order is sought, with particular reference to the requirements of paragraph 55(4)(b) of the PPIP Act.

The Tribunal orders: 1. The Tribunal has jurisdiction to hear and determine this application

2. The respondent's conduct is remitted for re-consideration under section 65 of the Administrative Decisions Tribunal Act 1997

3. On or before 30 January 2009, the applicant to file and serve a document which sets out: (a) the orders she seeks pursuant to section 55(2) of the Privacy and Personal Information Protection Act 1998, and

(b) the basis/evidence on which the orders are sought. In the event a compensation order is sought, the nature of the alleged loss giving rise to the compensation sought and the evidence in support of that loss should be included

4. On or before 27 February 2009, the respondent to file and serve its determination following its re-consideration

5. The matter set down for a further planning meeting on Monday, 16 March 2009 at 9:30 a.m.

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.