ENS v Commissioner for Fair Trading [2022] NSWCATAD 22

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ENS v Commissioner for Fair Trading [2022] NSWCATAD 22 Hearing dates: On the papers Date of orders: 20 January 2022 Decision date: 20 January 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: K Ransome, Senior Member Decision: (1) A hearing of the respondent's summary dismissal application is dispensed with. (2) The application by the respondent for summary dismissal is refused. (3) The matter is listed for directions by telephone at 9:30 am on 8 February 2022. Catchwords: ADMINISTRATIVE REVIEW – Privacy – application for summary dismissal – matter partly settled – applicant presses remaining issues – dismissal application refused Legislation Cited: Civil and Administrative Tribunal Act 2013 Privacy and Personal Information Protection Act 1998 Cases Cited: Alchin v Rail Corporation NSW [2012] NSWADT 142 BDK v Department of Education and Communities [2015] NSWCATAP 129 Choi v Legal Aid Commission of NSW [2020] NSWCATAD 242 Category: Procedural rulings Parties: ENS (Applicant) Commissioner for Fair Trading (Respondent) Representation: Applicant in person Respondent by its employed solicitor File Number(s): 2021/00005121 Publication restriction: An order is made under section 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) restricting publication of the name of the Applicant in these reasons.

REASONS FOR DECISION 1. This matter concerns a complaint by the applicant under the Privacy and Personal Information Protection Act 1998 (the PPIP Act) about how the respondent, the Commissioner for Fair Trading, dealt with his personal information. An order has been made restricting the publication of the applicant's name and he is referred to in these reasons as ENS. The names of other private individuals have also been anonymised. 2. ENS is a lot owner in a strata plan. It seems that a dispute arose between another lot owner in the plan (Ms N) and the strata manager of the plan. It appears that this lot owner sought the assistance of the Commissioner for Fair Trading in relation to the dispute and a mediation was scheduled to take place between the lot owner and the strata manager. The mediator was Mr Paul King, a mediator employed by NSW Fair Trading. 3. On 14 July 2020 Mr King received an email from ENS in which ENS asked: "Please urgently advise whether I and other owners may join this application, and if so how?". Mr King replied by email on 15 July asking ENS to call him. ENS responded later that day advising that he would try and call but asked Mr King to let him know by email as work commitments may prevent him from calling. ENS states that he made two phone calls to Mr King which went unanswered. On 16 July 2020 Mr King sent an email to Ms N advising that ENS had requested to be part of the mediation and asking if that was acceptable to her. 4. Noting that the mediation was due to be held in a few days and having heard nothing further from Mr King, ENS followed up by email on 17 July 2020. He was then advised by Mr King that, as the mediation process is confidential, he needed to contact the parties to establish whether they agreed to ENS being involved. ENS states that this advice was contrary to earlier advice he had received from NSW Fair Trading which was to the effect that any owner could add their name to an application. 5. On 17 July 2020 ENS made a formal complaint to NSW Fair Trading about Mr King but it seems this complaint was not actioned and ENS made a further complaint to the NSW Ombudsman. In the first instance, the Ombudsman referred the complaint back to NSW Fair Trading for action. 6. On 16 September 2020 ENS wrote to Ms Tracey Rance, Manager, Mediation Service Community Engagement, NSW Fair Trading and asked if his request to join the mediation had been communicated to Ms N. Ms Rance responded that it had. ENS responded stating that he did not request to join the mediation but rather sought information about whether he and other owners could join and, if so, how. When he asked for a copy of the request sent to Ms N, he was advised that release of the document would be subject to the provisions of the Government Information (Public Access) Act 2009. 7. On 22 September 2020 ENS sought an internal review by NSW Fair Trading of the decision of Ms Rance in regard to the access, use, disclosure and correction of his personal information under the PPIP Act. The reference to Ms Rance was in error and should have been to Mr King. ENS also sought review of the conduct of relevant staff in regard to the access, use, disclosure and correction of his personal information. ENS also asked that NSW Fair Trading advise the Information and Privacy Commissioner of these matters. 8. On 8 October 2020 the Commissioner for Fair Trading responded to ENS's complaint made to the Ombudsman. The Commissioner apologised for the fact that the process by which another party can join a strata mediation was not conveyed to him at the time he made his inquiry. The Commissioner also responded to other concerns raised in the complaint by ENS which are not relevant for present purposes. 9. In relation to the 22 September 2020 privacy internal review, NSW Fair Trading advised the Information and Privacy Commissioner of the review on 26 October 2020. The internal review was finalised on 21 November 2020. The officer conducting the review identified two information protection principles (IPPs) as being relevant. These were IPP 3 and IPP 11 as set out in ss 10 and 18 of the PIPP Act. 10. IPP 3 concerns the requirements placed on an agency when collecting personal information and provides: If a public sector agency collects personal information from an individual, the agency must take such steps as are reasonable in the circumstances to ensure that, before the information is collected or as soon as practicable after collection, the individual to whom the information relates is made aware of the following: (a) the fact that the information is being collected, (b) the purposes for which the information is being collected, (c) the intended recipients of the information, (d) whether the supply of the information by the individual is required by law or is voluntary, and any consequences for the individual if the information (or any part of it) is not provided, (e) the existence of any right of access to, and correction of, the information, (f) the name and address of the agency that is collecting the information and the agency that is to hold the information. 1. The internal review concluded that Mr King had complied with his obligations under IPP 3 as he made a reasonable attempt to inform ENS of the intended recipients of ENS's personal information in his email of 17 July 2020 which was as soon as practicable after the collection. 2. IPP 11 concerns the disclosure of personal information and provides: A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless— (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it. 1. The review found this IPP to be relevant as ENS's personal information had been disclosed to a third party by Mr King. The review found there was no beach of IPP 11 as, in accordance with (a) above, the information was disclosed to one of the parties consistent with the Strata Schemes Management Act 2015. It was also stated that Mr King had no reason – based on ENS's original email – to believe that he would object to the disclosure as it was for a related purpose. The review also found that NSW Fair Trading was not required to comply with IPP 11 as disclosure was reasonably contemplated under the Strata Schemes Management Act (s 25 PIPP Act). It was stated that that Act reasonably contemplates that a mediator be able to contact parties to a mediation in relation to the possibility of joining another party to the mediation. 2. While not identifying any privacy breaches, the reviewer recommended that an apology be made to ENS for failure to provide him with clear information about the process for joining a mediation and the related impact on his personal information. The reviewer also recommended that NSW Fair Trading update its business practices to ensure that adequate notice and information is provided to any party wishing to join a mediation.