DXD v NSW Department of Justice [2019] NSWCATAD 214

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DXD v NSW Department of Justice [2019] NSWCATAD 214 Hearing dates: On the papers Date of orders: 21 October 2019 Decision date: 21 October 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: P H Molony, Senior Member Decision: (1) Pursuant to s 50(2) the Tribunal dispenses with a hearing in this matter. (2) The application is dismissed for want of jurisdiction. Catchwords: Administrative Law – privacy and personal information – review of conduct – jurisdiction -whether conduct under review relates to the exercise of a judicial function Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Privacy and Personal Information Protection Act 1998 Residential Tenancies Act 2010 Cases Cited: BCR v Consumer Trader and Tenancy Tribunal [2104] NSWADT 79 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Category: Principal judgment Parties: DXD (Applicant) NSW Department of Justice (Respondent) Representation: Solicitors: Applicant (Self Represented) T Long (Legal Officer) (Respondent) File Number(s): 2019/00190084 Publication restriction: Non-publication order under s 64(1) of the e Civil and Administrative Tribunal Act 2013 made on 23 July 2019 prohibiting publication of the applicant's name.

REASONS FOR DECISION

Background 1. These reasons concern an application for review of conduct under the Privacy and Personal Information Protection Act 1998 (NSW) (the PPIPA Act). 2. The applicant is DXD, whose real name is the subject of a non-publication order made under s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) made on 23 July 2019. That order extends to the naming of people, places or things that may reveal the identity of the applicant. As a result, certain names have not been used. 3. The respondent is the Department of Justice. 4. At a case conference held on 23 July 2019 Senior Member Higgins noted that: The parties agree that the conduct the subject of this application is the refusal of the Tribunal in the Consumer and Commercial Division to amend order 2 of its decision of 13 December 2018 in file no RT [XXXXX]. The amendment sought by the applicant was the amendment of the name of the respondent from [X Superannuation] to [A and B atf X Superannuation] to [X Superannuation Fund] as this was the entity with whom she had entered a residential tenancy agreement. The Tribunal explained to the applicant that 'atf' stands for 'as trustee for'. The applicant presses her application. The issues for determination are: 1. Whether the conduct of which the applicant complains is conduct falling within s 6 of the Privacy and Personal Information Protection Act 1998 and not subject to that Act. 2. In the alternative, whether the respondent was in any event correctly named and whether the conduct is personal information of the applicant. 1. The words through which I have placed a line through contain an obvious typographical error. If they are disregarded the notation makes sense, and reflects what I understand the conduct in issue to be. 2. The RT file to which the notation refers were proceedings in the Commercial and Consumer Division of the Tribunal (the CCD) in which DXD, as a tenant, commenced proceedings under the Residential Tenancies Act 2010 (NSW) (the RT Act) against her landlord, who she named as [X Superannuation], seeking to have a notice of termination notice declared retaliatory. 3. That application was heard in the CCD on 13 December 2018. At the conclusion of the hearing the Tribunal made the following orders and published short reasons for decision: 1. The application is dismissed because: • Having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established. 2, The respondent's name [X Superannuation], is amended to [A and B atf X Superannuation]. The reasons did not explain why the Tribunal made order 2. 1. DXD sought further reasons for order 2 but was denied them. 2. On 6 March 2019 DXD filed an application in the CCD in which she sought to have the all the orders made on 13 December 2018 set aside, or order 2 made that day set aside, both under s 53(4) of the CAT Act. Section 53 provides: (1) The Tribunal may, in any proceedings, make any amendments to any document (for example, an application or appeal) filed in connection with the proceedings that the Tribunal considers to be necessary in the interests of justice. (2) Any such amendment may be made: (a) at any stage of the proceedings, and (b) on such terms as the Tribunal thinks fit, but may only be made after giving notice to the party to whom the amendment relates. (3) If a provision of this Act or the procedural rules is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal determines otherwise. (4) The Tribunal may, however, in dealing with any such irregularity, wholly or partly set aside the proceedings or a decision in the proceedings. 1. On 16 April 2019 that application was dismissed. The Tribunal, constituted by a different member, provided the following reasons for that dismissal: The Tribunal made orders in the matter on 13 December 2018. The Tribunal dismissed the application and amended the respondents name. The applicant seeks that the proceedings of 13 December 2018 be set aside or in the alternative order 2 made on that day amending the name of the respondent be set aside. The Tribunal called for the parties to provide further submissions in the matter. Neither party has provided any further submissions and the Tribunal is satisfied to dispense with an oral hearing. The Tribunal finds no basis for the making of the order as sought by the applicant. [Z Superannuation] is not a legal entity and the Tribunal accepts that the name of the respondent would have needed to be amended to a suitable entity. The applicant alleges her views were not sought at the hearing in relation to the amendment. The Tribunal has not been provided with a copy of the transcript of hearing. If the applicant is of the view that she was denied procedural fairness at the hearing then that is a matter that will need to be tested on Appeal . The Tribunal declines to make the orders sought. 1. DXD then lodged complaints about the Tribunal's decision with the Tribunal in an effort to have the case name amended. These were unsuccessful. She was told that her remedy was by way of appeal. 2. On 5 June 2019 DXD made a complaint to the Department of Justice (the respondent) in which she said that, as a result of the Tribunal's decision to amend the name of the respondent, the Tribunal's file (and the Tribunal's case management system) carried incorrect information, being an incorrect opinion about the name of her landlord. This she alleged breached the information protection principles. She characterised the name of the respondent in the Tribunal file as being an opinion that contained "incorrect information about me." She requested that the respondent amend that opinion. 3. In a decision dated 14 June 2019 the respondent treated that complaint as a request for internal review under s 53 of the PPIPA Act. The respondent found that it did not have jurisdiction to conduct such a review as the conduct in issue concerned the manner in which the Tribunal exercised its judicial functions. 4. On 19 June 2019 the applicant filed an administrative review application in the Administrative and Equal Opportunity Division of the Tribunal (the AEOD) seeking administrative review of the respondent's decision. 5. That application was listed before Senior Member Higgins on 23 July 2019, when she made procedural directions and the notation quoted at paragraph 4 above. It is clear from that notation the conduct in issue is, "the refusal of the Tribunal in the Consumer and Commercial Division to amend order 2 of its decision of 13 December 2018." 6. In submissions both parties agreed that this is an appropriate matter to determine on the papers. 7. The application has now been referred to me to determine without a hearing.