PC v University of New South Wales (GD) [2005] NSWADTAP 72

Appeal Panel - Internal

CITATION: PC v University of New South Wales (GD) [2005] NSWADTAP 72 APPELLANT PARTIES: PC RESPONDENT University of New South Wales FILE NUMBER: 059052 HEARING DATES: 30/11/2005 SUBMISSIONS CLOSED: 11/30/2005 DATE OF DECISION: 12/20/2005

PC v University of New South Wales [2005] NSWADT 157 DECISION UNDER APPEAL: BEFORE: Karpin A - ADCJ (Deputy President); Higgins S - Judicial Member; O'Neill A - Non Judicial Member CATCHWORDS: no question of law identified MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 053071 DATE OF DECISION UNDER APPEAL: 05/18/2005 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Privacy and Personal Information Protection Act 1998 CASES CITED: Y v Director General Department of Education and Training [2001] NSWADT 149 GA v. Department of Education and Training and New South Wales Police (GD) [2005] NSWADTAP 64 APPELLANT REPRESENTATION: In person RESPONDENT N Sharp of Counsel instructed by M Toomey ORDERS: 1. Appeal dismissed; 2. Costs reserved pending written submissions from appellant to be supplied within 28 days

REASONS FOR DECISION 1 By Notice of Appeal filed 5 August 2005, the appellant sought a review of the decision of the Administrative Decisions Tribunal, allowing the Respondent's application and dismissing an application for external review of the conduct of a public sector agency, the University of New South Wales, respondent to this appeal. The initial application was brought under the Privacy and Personal Information Protection Act 1998. 2 In oral reasons delivered on 18 May 2005, and confirmed in written reasons delivered 8 July 2005, the Tribunal held that a pre-condition to the Tribunal exercising jurisdiction, had not been complied with. The Tribunal found that the appellant had failed to comply with the provisions of section 53 Privacy and Personal Information Protection Act 1998. 3 That section, relevantly provides: 53 Internal review by public sector agencies (1) A person (the applicant) who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct. (2) The review is to be undertaken by the public sector agency concerned. (3) An application for such a review must: (a) be in writing, and (b) be addressed to the public sector agency concerned, and (c) specify an address in Australia to which a notice under subsection (8) may be sent, and (d) be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application, and (e) comply with such other requirements as may be prescribed by the regulations. 4 In giving judgment the Tribunal noted that the review application identified several items of conduct with which the applicant took issue. The applicant sought a public apology for the release of personal information, access to personal information and compensation. 5 Before the Tribunal the applicant contended that by letter dated 28 November 2004, she had sought an internal review; that the respondent had not completed a review within the statutory period, which, accordingly, gave rise to an entitlement to apply to the Tribunal. 6 The relevant portions of the applicant's letter of 28 November 2004, which was head "TOP URGENT" and addressed to the Vice Chancellor are: "Sorry to be bothering you again. Unfortunately, practices by some within the University necessitate me sending this urgent letter to you. Please kindly note in the two attachments to this letter, Mr. W.'s email of November 8 2004 to MB was forwarded to various individuals and distribution lists disclosing the "Private and Confidential" information in my employment file. As I had indicated previously, I have also received many emails from other individuals to that effect. I am respectfully requesting you to please urgently explain and advise the University's formal position regarding this matter. I request the University's formal position on that by you as the Vice Chancellor and the President of the University or by the Director of Human Resources formally on you and the University's behalf no later than the close of business on December 2,2004." 7 During the course of the hearing, the Tribunal inquired of the applicant what document or documents she relied upon to establish that she had sought an internal review, a necessary pre-condition to enliven the jurisdiction of the Tribunal. The applicant was adamant that the letter above quoted, was the one document upon which she relied. She did, however, submit that if that was deemed inadequate, the Tribunal should rely upon the broad powers contained in section 73 of the Administrative Decisions Tribunal Act 1997. 8 The Tribunal, correctly in the view of this Tribunal, rejected the proposition that section 73 could be applied as the applicant contended. 9 Whilst acknowledging that the general practice prevailing in proceedings before the Tribunal is not to be rigorous about modes of communication and the like, the Tribunal found that the letter of 28 November 2004, did not mention the relevant Act, nor information protection principles, and did not seek any formal remedy. The Tribunal found that the letter was: "...nothing more than a letter which expresses a grievance…over the distribution of emails and it does request the University's formal position." 10 The Tribunal determined that the letter of 28 November 2004 was not sufficient compliance with the requirements of section 53 of the Privacy and Personal Information Protection Act 1998 to trigger the jurisdiction of the Tribunal. 11 In giving oral reasons on 18 May 2005, the Tribunal referred to the previous occasions upon which the deficiencies of the applicant's letter, had been brought to her attention, thus giving her opportunity to remedy the deficiency by seeking an internal review in the proper, or at least, adequate form. The Tribunal pointed out to the applicant that although dismissing her application for review on the basis of want of jurisdiction, her grievance was not out of time. Despite that clear advice and the prior occasions upon which the possible inadequacy of her asserted complaint had been brought to the attention of the applicant, she has never sought to remedy that situation by lodging a complaint in compliance with the provisions of section 53. The issue was first brought to the attention of the appellant in April 2005 at a planning meeting, at which Deputy President Hennessy listed the matter for hearing on the preliminary issue, namely whether there had been a request for an internal review. The issue was also raised in correspondence from the respondent to the appellant. 12 The primary issue for this Tribunal is whether the Tribunal identified the correct question of law, namely, that compliance with the provisions of section 53 of the Privacy and Personal Information Protection Act 1998 is a necessary pre-condition to trigger the jurisdiction of the Tribunal; and whether, as a matter of fact, the letter of 28 November 2004 failed to meet the requirements of that section, and thus, there being no compliance with section 53, the Tribunal had no jurisdiction to hear and determine the application. 13 When this matter came on before the Tribunal constituted as an Appeal Panel, the appellant indicated that she did not wish to address the Tribunal, but had reduced all her submissions to writing. Apart from relying on her Notice of Appeal dated 5 August 2005, the appellant relied upon written submissions of 18 November 2005, and further submissions filed shortly before the hearing commenced on 30 November 2005. She was informed that she had the right to make any further oral submissions she wished to make, and would have a right of reply after the respondent had addressed the Tribunal. 14 The respondent relied upon the Reply filed on 26 August 2005 and submissions filed on 4 November 2005. Counsel for the respondent indicated that although the further submissions filed by the appellant on 30 November raised new issues, she was prepared to deal with those orally rather than seek a further adjournment. 15 Specifically the appellant's further submissions raised issues of statutory construction; procedural fairness; and an allegation that the Tribunal had failed to consider all the evidence. 16 The appellant's primary contention is that an internal review is not mandatory. However, the internal review regime contained in section 53 Administrative Decisions Act 1997, is specifically excluded from the Privacy and Personal Information Protection Act 1998 by s. 52(4) of that act which provides: "Section 53 (Internal reviews) of the Administrative Decisions Tribunal Act 1997 does not apply to or in respect of conduct to which this Part applies." 17 The relevant provisions are contained in s. 53 of the Privacy and Personal Information Protection Act 1998. 18 Section 55 of that Act provides: 55 Review of conduct by Tribunal (1) If a person who has made an application for internal review under section 53 is not satisfied with: (a) the findings of the review, or (b) the action taken by the public sector agency in relation to the application, the person may apply to the Tribunal for a review of the conduct that was the subject of the application under section 53. (3) Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997. 19 Clearly the reference to section 53 is a reference to the Privacy and Personal Information Protection Act 1998 and not to the Administrative Decisions Tribunal Act 1997. 20 In Y v Director General, Department of Education & Training [2001] NSWADT 149, the Tribunal held that an internal review was a pre-requisite to ground an application for review in the Tribunal. 21 This Tribunal is satisfied that the legislative regime requires an application for internal review before circumstances arise giving a right of review in the Tribunal pursuant to s.55 (1) (a) & (b). 22 In order for the appellant to have a ground or grounds upon which to prosecute an appeal before the Appeal Panel, it is necessary that she identify the error of law arising. Section 113 Administrative Decisions Tribunal Act 1997 provides: 113 Right to appeal against appealable decisions of the Tribunal (1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel. (2) An appeal under this Part: (a) may be made on any question of law, and (b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision. 23 The Tribunal has considered the substantial attachment to the Notice of Appeal and the material contained in the appellant's written submissions. The Tribunal is not satisfied that the appellant has identified an error of law. 24 The appellant's material raises issues going to the merits. There being no error of law identified, there is no question of law to be determined. Thus it would not be appropriate under the provisions of s. 113 (2) (b) to grant leave to extend the appeal to the merits. 25 At the hearing before the Tribunal at first instance, the appellant was adamant that the letter of 28 November constituted an application for internal review. Before the Tribunal sitting as an Appeal Panel, the appellant sought both to rely upon that letter, which she contended constituted an application for internal review, and to submit that the Tribunal could also have regard to other correspondence between the appellant and various staff of the Respondent. That, of course, would have required the Tribunal to have granted leave to extend the appeal to include a merits appeal. That is not open to the Tribunal. Even were it open, however, the Tribunal is of the view that the enlarged correspondence, which was in evidence before the Tribunal, would not have substantially assisted the appellant. 26 The finding that the appellant seeks to have reviewed by this Tribunal, is a finding of fact. It is not open to the Tribunal to review that finding of fact, unless the appeal is extended to the merits. 27 The Tribunal is satisfied that the finding of fact made by the Tribunal at first instance, namely that the letter of 28 November 2004 did not constitute an application for internal review under the provisions of the Privacy and Personal Information Protection Act 1998, was reasonably open on the evidence, and that, consequently, the finding that the pre-conditions for a review of an internal decision had not been met, was correct in law. 28 In arriving at that factual determination, the Tribunal identified the correct test to be applied. In order to constitute an application for internal review, the document or documents relied upon by the applicant, must upon their face, reasonably convey to the respondent agency, that an application for internal review is sought. The letter from the appellant to the respondent of 28 November 2004, cannot, on its face, reasonably be interpreted as an application for internal review. 29 There is no power in the Tribunal to dispense with the requirement for an application for internal review, pursuant to section 53 Privacy and Personal Information Protection Act 1998. It follows, accordingly, that if the pre-requisite to trigger the jurisdiction of the Tribunal is absent, the Tribunal has no jurisdiction to entertain the appellant's application for review, there being no reviewable decision, nor a failure on the part of the respondent to respond to a request for an internal review. 30 There being no error of law demonstrated in the initial Tribunal decision, this Tribunal has no jurisdiction to hear the appeal further as there is no compliance with the provisions of section 113 Administrative Decisions Tribunal Act 1997. 31 The jurisdiction of the Tribunal not being enlivened, the Tribunal does not propose to deal with any other matters raised by the appellant, insofar as they are not germane to the primary issue. 32 Costs: The appellant was put on notice by the respondent, that in the event that the appellant did not succeed, the respondent would seek an order for costs. At the hearing, that order was sought. The appellant was advised that she would be allowed 28 days from this decision, within which to make any submissions she wished to make, should the Tribunal indicate that it proposes to make an order that she pay the respondent's costs. 33 The Tribunal is of the view that this case involves special circumstances for the purposes of section 88(1) Administrative Decisions Tribunal Act 1997, and is one in which, in accordance with the decision in GA v. Department of Education and Training and New South Wales Police (GD) [2005] NSWADTAP 64, the appellant should be ordered to pay the costs of the respondent. The appellant will be permitted 28 days from the date of publication of this judgment, within which to make submissions to the Tribunal on the issue of costs. 34 The appellant noted that she is leaving for an extended period overseas on 16 December 2005. She provided her email address, and the Tribunal's decision will be forwarded to her by email. The appellant can make any written submissions on the issue of costs, in the form of an email. 35 The orders of the Tribunal are: The Appeal is dismissed. The appellant is allowed 28 days within which to make written submissions to the Tribunal on the issue of costs. Costs reserved for 28 days.