AQG v Secretary, Department of Customer Service

Where a misconceived mania for form prevailed over substance

Background

Revenue NSW, which is part of the Department of Customer Service (Department)^[1] issued AQG with a penalty notice on the basis of information about AQG that AQG said was false and misleading.^[2]

PPIP Act review applications

Internal

AQG applied to the Department for a review of Revenue NSW’s conduct under s 53 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act). He wasn’t, it appears, satisfied with the findings of the review because he spoke to the Department’s reviewer and requested further information, which the Department gave him in a ‘final decision’^[3].

Administrative

AQG applied to the New South Wales Civil and Administrative Tribunal (Tribunal) for an administrative review of the conduct under the Administrative Decisions Review Act 1997  (NSW) (ADR Act). He wrote on the Tribunal’s administrative review application form that he was “aggrieved by the original decision and the review”^[4] and he attached the ‘final decision’ to his application.^[5]

Administrative review resisted

The Department applied to the Tribunal for the summary dismissal of AQG’s administrative review application claiming “that the Tribunal does not have jurisdiction to determine it”^[6]. The Department submitted that the proceedings had “not been brought in relation to an internal review, as is required under s 55 of the PPIP Act”; that the issues raised in AQG’s application to the Tribunal exceeded the scope of the s 53 internal review; and, that the application was late and there were no grounds for the Tribunal to grant an extension of time.^[7] 

Review of certain conduct

The Tribunal, referring to Part 5 of the PPIP Act, said:

• Part 5 applies to conduct that includes the contravention or alleged contravention by a public sector agency of an information protection principle that applies to the agency (s 52(1)(a), (2));^[8]
• A person who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct (s 53(1));^[9]
• The agency concerned is to conduct the review (s 53(2));^[10]
• The internal review application is required to be writing (s 53(3));^[11]
• Following the review the agency may take certain action, or no action (s 53(7));^[12] and,
• “If a person who has made an application for internal review under section 53 is not satisfied … the person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct that was the subject of the application under section 53” (s 55(1).^[13]

Without construing the above provisions the Tribunal said: 

• “Only “a person who has made an application for internal review” may make an application to the Tribunal under s 55(1), and that application is limited to an application for “review of the conduct that was the subject of the application under section 53”;^[14]
• “The making of an application for internal review of “conduct” … is a condition precedent for applying to the Tribunal (PPIP Act, s 52(1)(a), (2), 53(1), 55(1)) ”^[15];  and,
• “[T]he Tribunal does not have jurisdiction to review [conduct that] … was not the subject of an internal review application^[16].

What the Legislature intended

It doesn’t follow, however, that because s 53 of the PPIP Act requires an application to be in writing and s 55(1) entitles a person to apply for a review of conduct the subject of the s 53 application that the Legislature intended the Tribunal’s jurisdiction to depend upon whether the person had exercised their s 53(1) of the PPIP Act right to a review of the conduct.

Or, to put it another way, it doesn’t follow that an application under s 53 is a “jurisdictional fact” that must be satisfied before the Tribunal has the jurisdiction to review the conduct.

Jurisdictional facts

 (A “jurisdictional fact” is a criteria that, when satisfied, enlivens the exercise of a statutory power. Whether something is a jurisdictional fact is ascertained by a process of construction having regard to the full statutory context and to the object that the legislation seeks to achieve. The question is whether the legislature intended that the presence or absence of the factual condition should invalidate an attempted exercise of power”.^[17])

 S 53 application not a jurisdictional fact

When the relevant PPIP Act provisions are construed it appears that the Legislature did not intend to make the Tribunal’s jurisdiction depend upon whether the person exercised their s 53(1) right before applying to the Tribunal – the PPIP Act does not prohibit a person from applying to the Tribunal unless an a s 53 review has been made, and, the Tribunal’s s 65(1) of the ADR Act power to remit conduct, which  can cure non-compliance with s 53 of the PPIP Act, is preserved by s 55(3) of the PPIP Act, which says, “Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997”.  (See ‘Powers Preserved‘)

Fact finding

The Tribunal set out to determine whether the conduct AQG raised in his administrative review application to the Tribunal was the same as the conduct he raised in his s 53 application to the Department. It thought its jurisdiction depended on it.

The Tribunal said that the Tribunal’s Administrative Review Application Form, which AQG lodged, was “not well adapted” for PPIP Act matters because it requires the applicant to identify “the decision to be reviewed” rather than the ‘conduct to be reviewed’^[18]. 

It apparently accepted: that AQG intended to apply for an administrative review of the Department’s decision on the application AQG made under s 53;^[19] and, that AQG attached the Department’s ‘final decision’ to his administrative review application form so his application would not be out of time.^[20]

Despite the above, the Tribunal decided that AQG had not, in fact, applied to the Tribunal for an administrative review of the conduct the subject of his s 53 application to the Department.

The Tribunal based its fact finding on a document that AQG had filed in the proceedings (in compliance with the Tribunal’s order that he identify the amendments he sought to his personal information). The Tribunal said the document was “a useful guide”.^[21]

Satisfied that the amendments AQG had identified at the Tribunal’s order had not been the conduct the subject of the s 53 application to the Department (and how could they be) the Tribunal said it did not have the jurisdiction to review them.^[22]

Choice of powers

The Tribunal had an array of powers.

It had the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) powers to:

• “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 … at any stage of the proceedings … on such terms as the Tribunal thinks fit (CAT Act, s 53(1) and (2)); and,
• “of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation (CAT Act, s 41).

The Tribunal had the ADR Act:

• Duty to “decide what the correct and preferable decision is having regard to the material then before it …” (ADR Act, s 63(1)); and the
• Power to “At any stage of proceedings … remit the decision to the administrator who made it for reconsideration of the decision by the administrator” (ADR Act, s 65(1).

Unreasonable

The only power, however, that interested the Tribunal was the s 55(1)(b) of the CAT Act power to “dismiss at any stage any proceedings … if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance”.^[23]  

The “term “misconceived” connotes “a misunderstanding of legal principle””, the Tribunal said, “and would represent a claim which did not disclose a cause of action (Alchin v Rail Corporation NSW [2012] NSWADT 142 at [25]; EJE v Service NSW and Commissioner for Fair Trading [2021] NSWCATAD 62 at [22])”^[24]. 

The Tribunal concluded that it did not “have jurisdiction to review any of the conduct the subject of the applicant’s application to the Tribunal” on the basis “that the proceedings are misconceived and that they should be dismissed under s 55(1)(b) of the NCAT Act.”^[25]

The real misconception

It was the Tribunal, however, and not the proceedings, that were misconceived.

AQG’s application raised a cause of action (a legal right to claim^[26]) – it was “the contravention by a public sector agency of an information protection principle that applies to the agency” (s 52 of the PPIP Act).

If the Legislature intended that that claim should be defeated by an applicant’s procedural mistakes (real or imagined) it would not have given the Tribunal its CAT Act powers to amend applications and extend time and exhorted the Tribunal to “facilitate the just, quick and cheap resolution of the real issues in the proceedings” (s 36(1) of the CAT Act).

Neither would the Legislature have provided, in effect, in s 55(3) of the PPIP Act that the s 55(1) right-to-apply did not limit the Tribunal’s powers under the ADR Act, the exercise of which can readily cure non-compliance with s 53 of the PPIP Act should non-compliance occur.

According to the NSW Court of Appeal, “The question of jurisdiction should not turn on matters of form over substance”.^[27]

Conclusion

The decision to dismiss AQG’s application for administrative review on basis that the proceedings were misconceived as they lacked a cause of action because the Tribunal did not have jurisdiction because the conduct the subject of the application to it was not (because of an ill adapted application form) the conduct the subject of the application to the Department is surely the kind of administrative decision making that Parliament legislated against when it gave the Tribunal its CAT Act powers, and its ADR Act review powers, and said, “Nothing” in s 55 of the PPIP Act limits them.

 

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[1] AQG v Secretary, Department of Customer Service [2021] NSWCATAD 167 (15 June 2021), [4].

[2] [7].

[3] See [8], [11] and [40].

[4] [12].

[5] [13].

[6] [17].

[7] [19].

[8] [27].

[9] [28].

[10] Ibid.

[11] Ibid.

[12] Ibid.

[13] [29].

[14] [30].

[15] [53].

[16] [50].

[17] Chase Oyster Bar v Hamo Industries [2010] NSWCA 190 (24 September 2010), [163-166].

[18] [32].

[19] [36-40].

[20] [40].

[21] [42].

[22] [51].

[23] [25].

[24] Ibid.

[25] [61].

[26] The “expression “cause of action” is imprecise and might extend either to the legal right claimed or to the facts that the plaintiff must establish for their claim …”: Clayton v Bant [2020] HCA 44 (2 December 2020), [67].

[27] Polsen v Harrison [2021] NSWCA 23 (3 March 2021), [40].