CITATION: JR & anor v Snow River Shire Council [2009] NSWADT 3 DIVISION: General Division FIRST APPLICANT JR PARTIES: SECOND APPLICANT JS RESPONDENT Snow River Shire Council FILE NUMBER: 083300 HEARING DATES: On the papers SUBMISSIONS CLOSED: 23 December 2008 DATE OF DECISION: 9 January 2009 BEFORE: Montgomery S - Judicial Member LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Privacy and Personal Information Protection Act 1998 CASES CITED: BQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 64 MG v Director General, Department of Education and Training [2004] NSWADTAP 45 APPLICANTS In person REPRESENTATION: RESPONDENT A Bradbury, solicitor ORDERS: 1. The application insofar as it relates to the First Applicant is dismissed 2. The application insofar as it relates to the Second Applicant is to be listed for a further planning meeting at 11 am on 27 January 2009. REASONS FOR DECISION Introduction 1 The Applicants lodged an application for review of the Respondent's conduct under section 53 of the Privacy and Personal Information Protection Act 1998 ("the Privacy Act"). 2 The matter was listed for a planning meeting on 18 November 2008. At that time the Respondent raised an issue as to jurisdiction and indicated that it would apply to have the matter dismissed. I agreed to have the issue of jurisdiction determined as a preliminary issue and set a timetable for the filing of the application for dismissal and submissions in relation to the issue. The Notice of Motion 3 On 2 December 2008 the Respondent filed a Notice of Motion seeking the following: 1. An order that the application be dismissed. 2. In the alternative, an order that the application insofar as it relates to the First Applicant be dismissed. 3. Such further or other orders as the Tribunal sees appropriate. 4 The Respondent also filed submissions in relation to the Tribunal's jurisdiction in respect of the matter. The Respondent submits that the Tribunal should dismiss the application in respect of both Applicants for want of jurisdiction. In the alternative, the Respondent submits that the application in respect of the First Applicant should be dismissed for want of jurisdiction. The Second Applicant filed submissions opposing the Respondent's Notice of Motion. Background 5 The chronology of events that lead to the application to the Tribunal is not in dispute. It is common ground that during the course of proceedings in the Local Court on 12 December 2007 the Applicants became aware that certain letters written by the Applicants to the Respondent had been provided to a third party, namely Mr Bernard Toohey. 6 On 20 May 2008, the Second Applicant sent an internal review application in relation to the Respondent's conduct to the Privacy Commissioner of NSW under section 53 of the Privacy Act. 7 By letter dated 18 June 2008, the Privacy Commissioner advised the Second Applicant that her internal review application should be sent to the Respondent. The Second Applicant subsequently sent the internal review application to the Respondent and the Respondent received it on 23 June 2008. 8 The Respondent responded to the Second Applicant's internal review application by letter dated 12 September 2008. The Respondent stated that it proposed to take no further action in relation to the matter complained of. Attached to the Respondent's letter was a written report by Mr Gerry Holmes of Holmes & Reynolds. 9 The First and Second Respondents lodged an application for review of the Respondent's conduct with the Tribunal on 7 October 2008. Relevant legislation 10 Section 53 of the Privacy Act provides for an applicant to apply to an agency for an internal review of the agency's conduct. That section relevantly states: 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 such a review must: (a) be in writing, and (b) be addressed to the public sector agency concerned, and (c) specify an address in Australia to which a notice under subsection (8) may be sent, 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, and ... (7) Following the completion of the review, the public sector agency whose conduct was the subject of the application may do any one or more of the following: (a) take no further action on the matter, (b) make a formal apology to the applicant, (c) take such remedial action as it thinks appropriate (eg the payment of monetary compensation to the applicant), (d) provide undertakings that the conduct will not occur again, (e) implement administrative measures to ensure that the conduct will not occur again. ... (8) As soon as practicable (or in any event within 14 days) after the completion of the review, the public sector agency must notify the applicant in writing of: (a) the findings of the review (and the reasons for those findings), and (b) the action proposed to be taken by the agency (and the reasons for taking that action), and (c) the right of the person to have those findings, and the agency's proposed action, reviewed by the Tribunal. 11 The Tribunal's jurisdiction to review the conduct of an agency in respect of the Privacy Act is pursuant to section 38 of the Administrative Decisions Tribunal Act 1998 ('the ADT Act') and section 55 of the Privacy Act. 12 Section 38 of the ADT Act states: 38 Conferral of jurisdiction to review reviewable decisions (1) Conferral of review jurisdiction The Tribunal has jurisdiction under an enactment to review a decision (or a class of decisions) if the enactment provides that applications may be made to it for a review of any such decision (or class of decisions) made by an administrator: (a) in the exercise of functions conferred or imposed by or under the enactment, or (b) in the exercise of any other functions of the administrator identified by the enactment. ... 13 55 of the Privacy Act states: 55 Review of conduct by Tribunal (1) If a person who has made an application for internal review under s 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 Tribunal for a review of the conduct that was the subject of the application under s 53. ... The Respondent's case 14 The Respondent filed and served written submissions in support of its application for dismissal. It argues that to trigger a review by the Tribunal, it is necessary to establish that a person has made a competent application for internal review under section 53. This means that all of the requirements specified under section 53(3) must be met in full. 15 Section 53(3)(d) provides that an internal review application must be made within six months from the time the applicant first became aware of the conduct the subject of the application, or such further time as the agency may allow. Where an internal review application is made out of time, the agency has discretion as to whether it accepts the late application. If the agency declines to exercise its discretion, the application will not satisfy the condition under section 53(3)(d) and accordingly will not be a competent application. 16 This issue was addressed by Judicial Member Britton in BQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 64. She stated at paragraphs [21]-[27]: 21 It is not in issue that the application for internal review was made about four months out of time but otherwise complied with all relevant requirements of s 53(3) of the Privacy Act. What is in issue is the consequence of the failure to lodge within time. 22 The applicant submits that a "late" application which otherwise complies with the requirements of s 53(3), may nonetheless constitute an "application" for the purpose of section 53(3) and s 55(1). While he concedes that section 53(3) is couched in mandatory terms he argues that the use of the word "must" in the opening words of s 53(3) should be read down by the word "may" in s 53(3)(d). Given that s 53(3)(d) grants the relevant agency a discretion to accept a late application, it follows it is submitted, that s 53(3)(d) cannot be seen as a mandatory requirement. 23 The applicant submits that were it not for the discretion conferred by s 53(3)(d) an application made out-of-time could not be construed as having met the pre-conditions set out in s 53(3). However the conferral of discretion means that the time limit cannot be seen as arbitrary and a precondition to compliance with s 53(3). I further understand the applicant to argue that it is anomalous that an application made out of time but accepted by the agency constitutes a competent application, while an application made out of time but not accepted by the agency, does not. 24 Accordingly the applicant contends, applications lodged outside time and not accepted by the agency, are reviewable under s 55(1). 25 I do not accept this argument. The wording of the provision is clear and unambiguous "an application for such a 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 a power is conferred on an 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. Contrary to the applicant's argument, the granting of power to waive the time limit does not, in effect void the requirement. 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 so exercise its discretion, the application does not satisfy s 53(3) and cannot be considered a competent application. 27 Accordingly in my view the application made by the applicant on or around 24 July 2000 does not meet the conditions set out in s 53(3). 17 The Appeal Panel in MG v Director General, Department of Education and Training [2004] NSWADTAP 45 agreed with this view. 18 The Second Applicant became aware of the Respondent's conduct on 12 December 2007. The Respondent says that in accordance with section 53(3)(d), she was required to lodge her internal review application by 12 June 2008. The Respondent did not receive the internal review application until 23 June 2008. The Respondent accepts that it had the discretion to accept the application outside the timeframe imposed under the Privacy Act. However, it says that on a correct construction of the notice given to the Second Applicant by letter dated 12 September 2008 it is clear that the Respondent's discretion had not been exercised. 19 The Respondent says that it declined to exercise its discretion to accept the application outside the timeframe imposed under the Privacy Act and that the Tribunal does not have jurisdiction to review the exercise of discretion by an agency to refuse to accept an application for review that is made out of time. 20 The Second Applicant has asserted that an employee of the Office of the Privacy Commissioner discussed the application with the Respondent prior to the internal review application being received by the Respondent on 23 June 2008. The Respondent submits that even if such a discussion did take place, that discussion would not constitute a competent application for the purposes of section 53(3) of the Privacy Act and therefore it does not alter the fact that the application for internal review was made outside the period of 6 months provided for by section 53(3)(d) of the Privacy Act. 21 Accordingly, the Respondent submits, the Tribunal does not have jurisdiction to review the conduct of the Respondent under section 55 and the application should be dismissed. 22 In the alternative, the Respondent says that it has not received any internal review application made by or on behalf of the First Applicant. Accordingly, the Respondent submits, the First Applicant's application should be dismissed as section 55 of the Privacy Act only confers jurisdiction on the Tribunal to review the conduct of an agency where a person has made an application for review under section 53. The First Applicant's case 23 The First Applicant did not file any submissions in relation to the Respondent's application for dismissal. The Second Applicant's case 24 The Second Applicant filed and served written submissions opposing the Respondent's application for dismissal. 25 The Second Applicant asserts that her application is competent and should not be dismissed. She accepts that she became aware of the relevant conduct on 12 December 2007 and that she sent her internal review application to the Respondent on 20 June 2008. She explains that the delay was a result of the fact that she had sent her complaint to Privacy NSW and understood that because she was dealing with the Office of the Privacy Commissioner, her completed application for an internal review was to be lodged with that office. That misunderstanding was not resolved until her application was returned to her on 18 June 2008 and she was advised to send it to the Respondent. She sent the application to the Respondent on 20 June 2008, however by that time the period of 6 months provided for by section 53(3)(d) of the Privacy Act had expired. 26 In any event, the Second applicant asserts that it is clear from the Respondent's letter of 12 September 2008 that the Respondent had in fact undertaken an internal review. The Respondent's letter stated: "Request for an Internal Review under the Privacy and Personal Information Protection Act 1998 Council has undertaken an internal review under the PPIP Act 1998 in accordance with your request received on 23rd June 2008. As indicated in the attached report from Holmes and Reynolds who were engaged by Council to undertake the internal review, I wish to advise you that council has undertaken the review. The details are set out in the report. In accordance with council's obligation under section 53 (8) of the PPIP Act 1998 I provide the following information:- (a) the findings of the review and the reasons for those findings, There is no evidence available to Council that would support your allegation that Council breach its obligation to you under the PPIP Act 1998. Please refer to the attached report for the reasons (b) the action proposed to be taken by the agency (and the reasons for taking that action) Council does not propose to undertake any actions. There are no reasons for Council to undertake any actions (c) the right of the person to have those findings, and the agency's proposed action, reviewed by the Tribunal I am required to advise you of your right to apply to the Administrative Decisions Tribunal established by the Administrative Decisions Tribunal Act 1997. If you are not satisfied with the conduct of the internal review. For the record I provide the following extracts from the PPIP Act 1998, section 55. Actions by Council For the record and in accordance with PPIP Act, section 53(7)(a) council proposes to take no further action on the matter. …" 27 The Second Applicant asserts that it can be implied from this response from the Respondent that it had exercised its discretion to accept the application outside the timeframe imposed under the Privacy Act. That being the case, she contends that the Tribunal has jurisdiction to determination her application and therefore it should not be dismissed. 28 The Second Applicant's written submissions did not address the Respondent's application for dismissal of the First Applicant's application. Discussion 29 I agree with the Respondent's submissions that the Tribunal does not have jurisdiction to review the exercise of discretion by an agency to refuse to accept an application for review that is made out of time. I also agree with the Respondent's submissions that section 55 of the Privacy Act only confers jurisdiction on the Tribunal to review the conduct of an agency where a person has made an application for review under section 53. 30 There is no material before me that contradicts the Respondent's assertion that the First Applicant has not made an internal review application in relation to the conduct that is relevant to this matter. Accordingly, I agree with the Respondent's submission that the First Applicant's application should be dismissed for want of jurisdiction. 31 It is not in dispute that the Respondent did not receive the Second Applicant's internal review application until 23 June 2008 or that at that time the period of 6 months provided for by section 53(3)(d) of the Privacy Act had expired. It will be a question of fact whether or not the Respondent exercised its discretion to accept the Second Applicant's application for review outside the timeframe imposed under the Privacy Act. 32 I have examined the notice sent from the Respondent to the Second Applicant by letter dated 12 September 2008. While I accept that the attachment to the notice states that the internal review application was out of time, in my view it is clear that the Respondent nevertheless undertook the review. The letter clearly states that the Respondent "has undertaken an internal review". It can be implied that the Respondent must have exercised its discretion to accept the application outside the timeframe imposed under the Privacy Act. The Respondent could have easily stated that it refused to undertake an internal review because the application was out of time, but it did not do so. 33 I find as a fact that the Respondent exercised its discretion to accept the Second Applicant's application for review outside the timeframe imposed under the Privacy Act and that the Respondent undertook the review. 34 Pursuant to section 55 of the Privacy Act, the Second Applicant was entitled to apply to the Tribunal for a review of the conduct that was the subject of the application under section 53 if she is not satisfied with the findings of the review. 35 It is not in dispute that the Second Applicant's brought her application to the Tribunal within the timeframe set out in the legislation. It follows, in my view, that the Tribunal has jurisdiction to determination the Second Applicant's application and it should not be dismissed. Orders 1. The application insofar as it relates to the First Applicant is dismissed 2. The application insofar as it relates to the Second Applicant is to be listed for a further planning meeting at 11 am on 27 January 2009. 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.