EM v Department of Education and Training (no 2) [2010] NSWADT 141

Set aside by Appeal :

CITATION: EM v Department of Education and Training (no 2) [2010] NSWADT 141

DIVISION: General Division

Applicant: EM PARTIES: Respondent: Department of Education and Training

FILE NUMBER: 083033

HEARING DATES: 25 & 26 February 2010

DATE OF DECISION: 8 June 2010

BEFORE: Wilson R - Judicial Member

CATCHWORDS: Jurisdictional issue. When applicant became aware of conduct constituting a breach of Privacy legislation

LEGISLATION CITED : Privacy and Personal Information Protection Act 1998

Applicant Representative: The applicant appeared by his agent REPRESENTATION: Respondent Representative: Ms K Edwards of Counsel

ORDERS: 1. The application for internal review was made within time so that the Tribunal has jurisdiction to determine the substantive matter under review. 2. The proceedings will be listed for further directions on 1 July 2010 at 12:30 pm.

REASONS FOR DECISION

1 The applicant commenced these proceedings pursuant to the Privacy and Personal Information Protection Act 1998 following an unsuccessful internal review application. The internal review application was dated 20 June 2007 and was received by the respondent on or about 04 July 2007. On 24 December 2007 the respondent declined to consider the application upon the basis that it had been lodged out of time. The applicant contends before the Tribunal that, in point of fact, it was lodged within the 60 day time limit provided in s.53(3)(d) of the Act. The single factual question upon which this issue turns is the point in time when the applicant first became aware of the conduct the subject of the application (s.53(3)(d)). This question determines the point in time from which the limitation period commences to run.