Appeal Panel - Internal CITATION: DO -v- University of New South Wales (GD) [2003] NSWADTAP 9 APPELLANT PARTIES: DO RESPONDENT University of New South Wales FILE NUMBER: 029053 HEARING DATES: On the papers SUBMISSIONS CLOSED: 02/20/2003 DATE OF DECISION: 03/31/2003 DO -v- University of New South Wales [2002] NSWADT 211 DECISION UNDER APPEAL: BEFORE: O'Connor K - DCJ (President); Montgomery S - Judicial Member; Antonios Z - Member CATCHWORDS: costs - no question of law identified MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 023142 DATE OF DECISION UNDER APPEAL: 10/28/2002 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Privacy and Personal Information Protection Act 1998 DO -v- University of New South Wales [2002] NSWADT 211 Citadin Pty Ltd -v-Eddie Azzi Australia Pty Ltd & General Pants Co Pty Ltd (No 2) [2001] NSWADTAP 31 CASES CITED: Graham -v- Director General, Department of Community Services [2001] NSWADTAP 4 Tu -v- University of Sydney (No 2) [2002] NSWADTAP 25 Harding -v- UNSW [2002] NSWADTAP 36 (EOD) APPELLANT REPRESENTATION: In person RESPONDENT C Kirby, solicitor ORDERS: 1. Appeal dismissed; 2. Respondent's application for costs refused. 1 The appellant, DO, applied in February 2002 for admission to the University of New South Wales as a Ph.D. student in optometry. He was successful in gaining admission. A month later his enrolment was terminated. The University made that decision based on information that it had obtained about DO's academic history, information that he had not disclosed in his application. DO objected to the obtaining of the information on the basis that it infringed the Privacy and Personal Information Protection Act 1998 (the Privacy Act). 2 He sought internal review of the conduct by the University. It was unsuccessful. He applied to the Tribunal for review of the conduct. The University's decision on review is contained in a report prepared by the Pro-Vice-Chancellor (Education) dated 21 June 2002. The Tribunal dismissed his application: DO -v- University of New South Wales [2002] NSWADT 211 (28 October 2002). 3 The information obtained by the University was of two types: records of non-completion of courses between 1997 and 2001 (from Adelaide University, University of Queensland, Macquarie University and University of Tasmania); and disciplinary information. In the case of Adelaide University additional information was supplied relating to the grounds upon which he had been excluded from the B Sc (Hons) course that he was undertaking there in 1997. This had followed the findings of a University Council Committee of Inquiry, constituted under the statutes of the University, which had inquired into allegations made by DO against his supervisor; and into his behaviour towards other staff members and students. It concluded that DO's conduct had been so unacceptable as to warrant exclusion from the course. The transcript received from Macquarie University indicated that his candidacy for a Ph.D. there had been terminated by resolution of the Discipline Committee. 4 The University stated that these disciplinary items of information had been taken into account in its decision to terminate his enrolment (letter, 23 April 2002). 5 The University was required by the Tribunal to file all relevant information obtained by it. The information included the Macquarie University transcript showing the disciplinary entry, and the record of the reasons for decision of the Adelaide University Committee. Notably, there was no material before the Tribunal relating to what transpired at Macquarie University before its disciplinary bodies, or any evidence of any oral or other written communications between staff at Macquarie University and staff of the University in respect of DO's application. 6 DO now appeals against the Tribunal's decision, as permitted by s 56 of the Privacy Act. The appeal is governed by s 113 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act). The notice of appeal was filed on 22 November 2002. Directions of the usual kind were made, commencing with a direction to DO to furnish submissions in support of the points of appeal. A hearing date, 4 March 2003, was set. DO failed to comply with the directions. He was asked for an explanation, and advised that he relied on the same submissions as were made to the Tribunal below. 7 Consequently the Appeal Panel decided to vacate the hearing date, and deal with the matter on the papers without a hearing as permitted by s 76 of the Tribunal Act. 8 The University proceeded in any event to file short written submissions, filed 20 February 2003. The University has not been called on at this stage to make any oral submissions. 9 The University also applied for an order for costs against DO on the basis that he has failed to identify any error of law in his appeal, and failed to comply with the directions of the Tribunal. The Appeal Panel has indicated to the University that if it considers that there is any arguable basis for the appeal, it will adjourn and give the University (and DO) that opportunity. 10 Under s 113 of the Tribunal Act an appeal may be made as of right in relation to a question of law, and, with the leave of the Appeal Panel, the appeal may extend to the merits. The Appeal Panel has followed the practice of requiring the identification of an error of law in the decision under appeal of such significance as to warrant interfering with it, before considering the question of extending the appeal to the merits. 11 We have mentioned earlier the scope of the material before the Tribunal. It is apparent from DO's correspondence and submissions both before the Tribunal and now before the Appeal Panel that he is aggrieved over what he claims is information given about him to the University by staff at Macquarie University in relation to the circumstances of his exclusion on disciplinary grounds. We simply note that his assertions in regard to information exchanges which he believes have damned him unfairly between the University and Macquarie University have not been substantiated by any evidence. 12 There are 10 points of appeal listed in the statement accompanying the notice of appeal. Of these seven, numbers 4 to 10 relate to the assertions which have not been substantiated. 13 Accordingly these reasons only deal with the first three points made. Assessment 14 The Tribunal found that the University is a public sector agency and within the meaning of the Act it is bound by the Privacy Act; and that the information in issue is personal information within the meaning of the Act. These findings are not in contest. 15 There are two relevant Information Protection Principles, both relating to collection of information, ss 8 and 9 (IPP 8 and IPP 9). They provide as material: ' 8. Collection of personal information for lawful purposes (1) A public sector agency must not collect personal information unless: (a) the information is collected for a lawful purpose that is directly related to a function or activity of the agency, and (b) the collection of the information is reasonably necessary for that purpose. (2) A public sector agency must not collect personal information by any unlawful means. 9. Collection of personal information directly from individual A public sector agency must, in collecting personal information, collect the information directly from the individual to whom the information relates unless: (a) the individual has authorised collection of the information from someone else, or (b) …'. 16 Clearly the collection of academic history information in relation to persons applying for admission to courses is done for a lawful purpose directly relating to the educational functions of a university. Universities must engage in processes of assessment to satisfy themselves that candidates for admission are qualified and reasonably capable of undertaking courses. Having passed that threshold, universities must then make (often hard) decisions about who among the candidates will be offered places and be the subject of the commitment of resources. In this instance there was also an additional application, for a Ph D scholarship ($22,000 tax-free per annum), which was successful. The academic history information not disclosed by DO, and then collected and taken into account by the University, was clearly 'reasonably necessary' to the processes of assessment as we have described them. We agree with the Tribunal that there is no substance in DO's claim that the collection infringed IPP 8. 17 In respect of whether IPP 9 was infringed, the question turns on whether 'the individual authorised collection of the information from someone else': s 9(a). Here there was no dispute that DO gave an authorisation of some kind to collect information 'from any educational institution attended by me'. 18 DO accepted that the authorisation did permit collection of academic transcripts, but contended that an authorisation of the kind he signed did not extend to 'the collection of inaccurate personal information'. We take this to be a reference to the disciplinary material. The words used in the authorisation, to reiterate, were 'I authorise the University to obtain official records from any tertiary institution previously attended by me.' 19 The Tribunal did not in its reasons differentiate between the academic transcripts and the disciplinary information. There is no express reference to the disciplinary information in the Tribunal's reasons. At para [5] the Tribunal refers to the University subsequently obtaining 'academic transcripts'. At para [6] it referred to the Registrar's letter of 16 April 2002 inviting DO to explain his non-disclosure of previous 'enrolments'. At para [9] the Tribunal described the conduct of concern as being the obtaining of DO's 'academic record'. The Tribunal referred later to the University having obtained his 'previous academic history' and made findings on that basis: see para [22]. In the next two paragraphs it refers to the information obtained as his 'academic record'. It may be that the Tribunal intended to embrace disciplinary information within the various expressions it used. 20 The usual connotation given to 'academic record' is, we consider, the official record of course results and a statement as to progress, including whether the course was completed and a degree awarded. Such a record might also include a brief statement as to reasons for non-completion. We doubt whether the term usually carries with it the connotation that it includes all information held in the university about the student; or detailed records of formal proceedings such as the reasons for decision of a special inquiry (as in the Adelaide University case). 21 In any case, the signed authorisation given by DO extended to all 'official records'. This is an imprecise term, and one that will fall to be interpreted on a case by case basis. It may be that it is intended to convey a distinction between records held centrally by a tertiary institution, and the subject of certification by a senior officer such as the Registrar or Vice-Chancellor; and those that are held within particular units of the institution (faculties, departments and the like). 22 There is some doubt in our mind as to whether the Tribunal in reaching its conclusion addressed the disciplinary information. It may have confined its attention to the transcripts of academic record. If it did not consider the disciplinary information, the reasons would technically be inadequate, and an error has occurred. But if that was the case, the error is not one justifying a reopening of the decision. In our view there can be no doubt that the formal record of the reasons for decision of a committee of inquiry undertaken pursuant to a university's statutes and by-laws is encompassed by the term 'official records'. The Adelaide University material was lawfully obtained. As to Macquarie University material, the only evidence is that the short statement referring to the ground for termination was obtained. There is no evidence to substantiate the applicant's other assertions in that regard. 23 Accordingly, the appeal is dismissed. 24 As to costs, the proceedings are governed by s 88 of the Tribunal Act. Sub-section (1) confers power on the Tribunal in these terms: '(1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs.' 25 The Tribunal and the Appeal Panel has now dealt in a number of decisions with the question of what might constitute 'special circumstances' justifying a costs order in respect of the appeal: see, for example, Citadin Pty Ltd -v-Eddie Azzi Australia Pty Ltd & General Pants Co Pty Ltd (No 2) [2001] NSWADTAP 31; Graham -v- Director General, Department of Community Services [2001] NSWADTAP 4; Tu -v- University of Sydney (No 2) [2002] NSWADTAP 25; Harding -v- UNSW [2002] NSWADTAP 36 (EOD). 26 In this instance the University submitted that the special circumstances warranting an award of costs are failure to identify any error of law and failure to comply with the directions of the Appeal Panel. 27 In considering the exercise of the discretion in the retail leases litigation the Appeal Panel has given considerable weight to the commercial character of this category of dispute. A successful party should not, we consider, be exposed to an appeal where the errors of law are not reasonably arguable. The Appeal Panel has taken the view that a failure to succeed on appeal should be treated as a special circumstance. The Appeal Panel has been more circumspect in the approach that should be taken on this issue in respect of failed appeals in the public law and equal opportunity areas. 28 This appeal has, we accept, put the University to some, further expense. The applicant's failure to comply with the direction to file and serve submissions in support of the grounds of appeal required it to contact the Tribunal. The Tribunal's ruling did away with the need for the University to file any submissions, and for the University to prepare for and attend an oral hearing. This case does not involve the degree of abuse of procedural requirements that is found in Graham, Tu and Harding. 29 DO's original application for review and the subsequent appeal have had, we agree, no merit. There was no application for costs in respect of the original hearing before the Tribunal. In our view little further expense has been occasioned to the University by the appeal. In these circumstances, the application for costs is not, we consider, made out. Order 1. Appeal dismissed. 2. Respondent's application for costs refused. 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.