KP v Narrandera Shire Council (No. 2) (GD) [2011] NSWADTAP 32

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: KP v Narrandera Shire Council (No. 2) (GD) [2011] NSWADTAP 32 Hearing dates: On the papers Decision date: 08 July 2011 Jurisdiction: Appeal Panel - Internal Before: Magistrate N Hennessy, Deputy President S Montgomery, Judicial Member E Hayes, Non-Judicial Member Decision: The Respondent's application for costs is refused. Catchwords: COSTS - whether fair to award costs of appeal - whether no tenable basis in fact or law Legislation Cited: Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Privacy and Personal Information Protection Act 1998 Category: Costs Parties: KP (Appellant) Narrandera Shire Council (Respondent) Representation: Counsel M A Robinson (Respondent) KP (Appellant - in person) Henningham Law (Respondent) File Number(s): 109050 Decision under appeal Citation: KP v Narrandera Shire Council [2010] NSWADT 60 KP v Narrandera Shire Council [2010] NSWADT 206 Before: General Division File Number(s): 083362

REASONS FOR DECISION

Introduction 1APPEAL PANEL (N HENNESSY, LCM (DEPUTY PRESIDENT), S MONTGOMERY (JUDICIAL MEMBER), E HAYES (NON-JUDICIAL MEMBER)): Narrandera Shire Council has applied for KP to pays its costs of proceedings in the Appeal Panel. The application is refused. This decision has been made 'on the papers' following written submissions from both parties: Administrative Decisions Tribunal Act 1997 ( ADT Act ), s 76. 2KP appealed to the Appeal Panel against a decision of the Tribunal under the Privacy and Personal Information Protection Act 1998 ( PPIP Act ). The Appeal Panel dismissed the appeal and affirmed the Tribunal's decision. 3The background to these proceedings is that on 26 February 2007 an employee of the Council wrote a 'confidential' internal memorandum to the General Manager. The subject of the memorandum was observations the author had made about KP's behaviour and her concerns about that behaviour. 4KP applied under the now repealed Freedom of Information Act 1989 ( FOI Act ) for access to a copy of the memorandum. KP withdrew that application after Council agreed to provide him with a redacted version. Information in the memorandum that could lead to the identification of the author was deleted. Council states in its submission to the Appeal Panel on costs that the fact that KP withdrew his application "preserved the exempt status of the memorandum". 5Subsequently KP applied under the PPIP Act for a review of certain conduct relating to the collection, retention, accuracy and use of the personal information in the memorandum (the "conduct application"). The Tribunal concluded that because Council had not carried out an internal review of the conduct and KP had not waited the necessary 60 days before applying to the Tribunal, the Tribunal had no jurisdiction to review the conduct identified in the conduct application. The Appeal Panel agreed with that conclusion. 6KP also applied to the Tribunal for access to the memorandum under s 14 of the PPIP Act (the "access application"). Section 14 requires Council to provide people such as KP with access to personal information that it holds about them. The Tribunal ordered that Council give KP another copy of the redacted version of the memorandum in order to fulfil its obligations under s 14. Ultimately KP did not appeal to the Appeal Panel against that decision. 7At the hearing before the Appeal Panel the only ground of appeal which KP pressed was that the Tribunal had erred in law by not determining whether the conduct identified in the "conduct application" had breached various provisions of the PPIP Act , other than s 14.