VZ v University of Newcastle [2009] NSWADT 18

CITATION: VZ v University of Newcastle [2009] NSWADT 18

DIVISION: General Division

APPLICANT VZ PARTIES: RESPONDENT University Of Newcastle

FILE NUMBER: 063072

HEARING DATES: 21 February 2007, 4 - 5 October 2007, 3 - 5 March 2008, 8 April 2008

SUBMISSIONS CLOSED: 8 April 2008

DATE OF DECISION: 27 January 2009

BEFORE: Wilson R - Judicial Member

CATCHWORDS: Implied consent to disclosure and use of personal information

LEGISLATION CITED : Privacy and Personal Information Protection Act 1998

APPLICANT VZ REPRESENTATION: RESPONDENT University Of Newcastle

ORDERS: The decision under review is affirmed.

REASONS FOR DECISION 1 The applicant commenced these proceedings pursuant to the provisions of the Privacy and Personal Information Protection Act 1998 seeking a review of a determination made by the respondent under that Act. Whilst the matter proceeded to what was in effect a substantive hearing on the merits, the respondent also advanced an argument that the proceedings had not been commenced in time. Argument was heard on this aspect together with the substantive arguments as to the merits. The respondent adopted the position that, although it was pressing for summary judgment, it was appropriate that the matter should be decided on the merits, but, should the Tribunal decide adversely to the respondent on the evidence adduced, it reserved its position on the need for it to call further evidence. The reason for this was that the respondent had only submitted limited evidence going to its summary judgment application, and had not adduced all its evidence relevant to the merits. This appeared to be the most expeditious course. 2 At the conclusion of the hearing the applicant also sought an adjournment to enable him to address certain issues that had arisen during argument. The Tribunal reserved its decision on this latter application as well. However, this application was not pressed at the later directions hearing on 08.04.08 and therefore is no longer in issue. In any event, the issues have been adequately canvassed at the substantive hearing and there is little more that could be said by the applicant. 3 There is much common ground in relation to the factual material. By way of overview, the evidence shows that in September 2003 the applicant sought the assistance of certain persons who performed duties at the respondent's legal centre. This was in relation to a dispute with a third party as to the applicant's employment with that third party. Pursuant to the applicant's request for legal assistance, persons engaged at the legal centre obtained information concerning the applicant and applied it, in various ways, towards resolution of the dispute. This aspect creates an uniqueness for the proceedings: they are not simply concerned with the use or disclosure of information by an agency in the course of performing its functions. Rather, the central feature is the retainer between the applicant and the solicitors who acted on his behalf in relation to the matter upon which he had given them instructions, either directly or indirectly. A retainer like this carries with it an authority to act on the applicant's behalf. 4 There is a second unique feature. On 20 April 2004, the applicant lodged a complaint under the Privacy and Personal Information Protection Act 1998 with the Director of the legal centre alleging that persons at the legal centre had dealt with his personal information in breach of the legislation. The applicant's complaint was referred to the respondent's privacy officer. Correspondence followed, after which the applicant lodged a further complaint under the Act on 06.12.05. This latter complaint, the applicant argues, alleged, at least in part, that the referral of the applicant's file, kept by the legal centre, to the privacy officer was itself a breach of privacy. 5 This general overview requires a more detailed consideration in due course. The applicant's general approach to the proceedings involved the assumption that, in order to deal with any information personal to the applicant, the respondent should have advised him of what it proposed to do and obtained his express consent to the proposed user. Whilst it was always open to the respondent to do this, the legislation does not always limit the proper use of personal information in this way. The precise provisions of the legislation therefore must be considered. 6 The applicant adduced a large volume of written material, both evidentiary and by way of submission. The documents filed by the applicant and admitted into evidence contain a mixture of evidentiary assertions of fact and argument, so that a great deal of time was involved, during preparation and at hearing, and thereafter as well, in distinguishing between what is evidentiary and what is pure submission. No doubt, the respondent has experienced a similar difficulty in preparing its case and in presenting the evidence that it thought was necessary to meet the factual assertions that the applicant put forward. In addition, factual matters were often asserted by the applicant during argument, which the respondent would have found difficult to meet at the late stage that they arose. The proceedings had been on foot for some time before they reached hearing and the parties were anxious to bring them to culmination. The consequence of this is that the Tribunal must exercise some care in situations where the respondent has possibly not had sufficient time or notice to adequately prepare and adduce its evidentiary materials. 7 The applicant's submissions, both written and oral, had a degree of openness about them, which sometimes led the applicant into areas that were not of great relevance to matters in issue. This is not uncommon when applicants appear in person, however it did prove time consuming at the hearing. Despite this, the applicant's case, with the respondent's assistance, emerged at the end of the day (see transcript 03.03.08 pages 33ff). 8 In part, this was achieved by the respondent collating the relevant documents (exhibit R2) which show the relevant facts upon which the applicant relies. Also, at hearing the applicant was able to distil the breadth of his written materials into discrete arguments that he was pressing. Consequently, at the end of the day the applicant's case became manageable. Despite the fact that the applicant often presented his arguments and submissions in slightly different ways, it eventually became possible to distil the main arguments he wished to press. These essential arguments are considered below and are intended to include the several variants, which the applicant argued from time to time. 9 The other evidence adduced by the respondent comprehensively dealt with a number of factual issues where the applicant had little evidence, particularly in relation to the 'official' activities of the persons who dealt with the applicant's personal information. The applicant had sought to address the deficiencies, in the evidence he had to hand, by requesting the issue of summonses, but the respondent has made concessions in this regard, which obviate the need for any summonses to issue (see exhibit R1). 10 The legal centre was known as The University of Newcastle Legal Centre. It was established by the respondent in 1995 to provide legal services to the community and to provide training for students. The persons who perform the activities of the Centre are answerable to the Director of the Centre who, in turn, answers to the head of the respondent's School of Law. It had a working relationship with other organisations, such as Legal Aid and the Many Rivers Aboriginal Legal Service. The activities of the Centre and its working partners were not always clearly distinguished, as the letterheads used in correspondence demonstrates. However, the Tribunal is satisfied that the persons referred to hereunder were at material times undertaking activities on behalf of the Centre, even though they may have been, in the strict sense, employed by another organisation. The respondent basically accepts that this was the true position. 11 In September 2003, the applicant approached the Centre for assistance concerning his employment with the Catholic Schools Office (the CSO). He discussed his case with a solicitor, Mr. Kozlowski, a solicitor engaged at the Centre, who undertook to write certain letters on the applicant's behalf (exhibit R2). Just prior to 25.09.03, Mr. Kozlowski discussed the applicant's case with a Ms Wells, a solicitor employed by the Many Rivers Aboriginal Service, who agreed to act on the applicant's behalf in relation to his employment issues with the CSO (exhibit R2). Mr. Kozlowski advised the applicant of this by letter dated 25.09.03. It is clear that the applicant did not object to this course, and no complaint is made of the referral of the matter to Ms Wells. The applicant conceded that he consented to this course (transcript 03.03.08, page 60.14). The Many Rivers Aboriginal Legal Service had a 'working partnership' with the Centre (exhibit R3, paragraph 11). 12 Whilst at hearing on 05.03.08, the applicant submitted that the referral to Ms Wells was in truth a breach of privacy, as he was not earlier informed that this would occur, he is here referring to the initial conversation between Mr Kozlowski and Ms Wells, and not to the transfer of the matter itself (and the information contained on file). However, lawyers will often speak of cases without naming the parties, and there is no evidence here that this initial conversation referred to the applicant by name. In any event, even if the applicant was named in this initial conversation, it was a use that was directly related to the purpose with which Mr Kozlowski first obtained the information about the applicant. Mr Kozlowski was doing no more than seeking to obtain the most effective way of dealing with the applicant's matter using the resources he had available to him. 13 Both Mr. Kozlowski and Ms Wells initiated communications seeking to obtain information. Ms Wells sought information about the applicant from the Victorian Aboriginal Legal Service Co-operative Ltd (VALS) and from the Colac Magistrates Court (Victoria). The applicant asserts that these two requests by Ms Wells involved privacy breaches. 14 As stated above, the applicant sought legal assistance from the Centre initially, and later accepted the assistance offered by Ms Wells. Consequently, Ms Wells was acting as his legal advisor in relation to his dispute with the CSO: the applicant does not really contend otherwise. Clearly, Ms Wells had an implied authority, at least, to obtain information that she though was necessary for the purposes of her retainer. A client cannot restrict a solicitor's retainer in this regard without express instructions. In any event, the applicant gave an express written authority, of general application, to obtain information for the purposes of the retainer (exhibit R2, authority dated 07.10.03). Whilst this authority referred to the Centre expressly, Ms Wells was able to rely upon it: in fact her relevant letters (R2, letters dated 13.11.03 and 20.11.03) are under the Centre's letterhead. Her fax to the Colac Magistrates Court dated 20.11.03 (exhibit R2) enclosed a copy of the applicant's authority to obtain information. In such circumstances, an argument that the information was collected in breach of privacy principles, from VALS and from the Colac Magistrates Court, cannot be sustained. 15 The applicant submitted at hearing that the information that Ms Wells obtained from VALS and from the Court was wider than that which he authorised the Centre to obtain. The submission was that Ms Wells should only have obtained details of the applicant's medical records, and no more. However, there is no evidence to support this submission and the applicant does not assert that the information obtained was irrelevant to his matter. In this regard it is noted that the applicant stated in submissions that he had retained VALS to represent him in the proceedings with which the Colac Magistrates Court was involved. Consequently, in order to properly advise the applicant, Ms Wells was required to find out more than the applicant's criminal history. Her retainer properly permitted her to make the enquiries that she did. 16 The applicant also submitted that Ms Wells did not advise him of the information that she had obtained from VALS and the Court and this, he argued, was in breach of the privacy requirements. However, it is quite clear from the correspondence in exhibit R2 that Ms Wells was in communication with the applicant and sought instructions from him as the matter progressed. Further, Ms Wells knew who to contact to obtain information and this must have been advised to her by the applicant himself. When he signed the authority to obtain information on 07.10.03 he must have known the reasons why Ms Wells sought his express authority as, by that time, one of the issues under consideration was the applicant's criminal record. The Tribunal has no doubt that Ms Wells discussed the results of her investigations with the applicant, given that she was acting as his solicitor and was therefore required to obtain his instructions. Consequently, the requirements of section 10 of the Act have been met. 17 On 23.12.03, Ms Wells prepared a letter addressed to the CSO advising that the applicant did not wish to press his matter with them any further (exhibit R2). The applicant submitted that this letter was written, and sent, without his authority. Also, around that time Ms Wells referred the applicant's matter to a Mr Boersig, who was the Centre's Director at the time. These submissions may be dealt with briefly. Firstly, Ms Wells' letter of 23.12.03 was only a draft that the applicant discovered in his file at a later stage: it was not in fact sent (see exhibit R2, Mr Boersig's letter dated 21.01.04, paragraph 2). Consequently, there was no disclosure concerning this draft letter. Secondly, the fact that Mr Boersig became involved, and that Ms Wells no doubt passed the applicant's information on to Mr Boersig, does not raise a breach of privacy, given that he was the Director of the Centre at the time. He obtained the file and dealt with the finalisation of the matter as far as the Centre was concerned. Thus there was no improper user of the information by Ms Wells when she passed it on to Mr Boersig. 18 However, the applicant further submitted that by letter dated 21.07.04 from the CSO he was advised that the CSO were aware that he was no longer pressing his matter with them (exhibit R3, letter dated 10.08.04 being 'exhibit 8' to the affidavit, paragraph 4 of the letter). From this he argues that Ms Wells has, in some other form, communicated to the CSO that the applicant was no longer seeking employment with them. The applicant agrees that this in fact was the case. Consequently, it was within the scope of Ms Wells' retainer to communicate this information, if in fact she did. Any such disclosure was within the purpose for which such instructions had been obtained and therefore not a breach of privacy restrictions. 19 A further issue raised by the applicant concerned the involvement of Professor English. At relevant times the Professor was the respondent's privacy officer. On 20.04.04 the applicant submitted a complaint under the privacy legislation (exhibit R3, annexure 'exhibit 5). This complaint was referred to Professor English to be dealt with. In doing so, the Professor obtained access to the Centre's file concerning the applicant. It is not entirely clear as to the contents of this file at the stage that the Professor obtained it, as the applicant has at various stages sought copies of his file and its actual return. However, it is here assumed that Professor English in fact obtained some personal information concerning the applicant when he obtained and perused this file. The respondent does not contend otherwise. The applicant submits that this was a breach of privacy restrictions. This cannot be so, given that the Professor was doing no more than dealing with the applicant's privacy complaint. That complaint concerned the handling of the applicant's matter with the CSO by the Centre: the application itself simply particularises the complaint by reference to letters, but it is clear that the conduct of the officers of the Centre was the gravamen of the complaint. The applicant submits that the transfer of his file from the Centre to Professor English constituted the relevant breach. However, Professor English's use of the file was with the applicant's implied consent which accompanied the lodging of his complaint: Such consent must be necessarily implied in the circumstances, particularly as the complaint requests a review of the use and disclosure of the applicant's personal information. The complaint must be investigated thoroughly, and this clearly required access to and perusal of the relevant files. The applicant was advised that Professor English would conduct the review (exhibit R3 paragraph 18). Consequently, there was no breach in the user of the applicant's file, and personal information, in this way. 20 The applicant requested the Centre to provide him with a copy of his file on 31.03.04. Mr McCarthy was then the Principal Solicitor at the Centre. He replied to the applicant's request advising that the copy would be made available and could be collected from the Centre. (exhibit A5). The applicant submitted that the provision of his file to Mr McCarthy breached privacy restrictions. However, Mr McCarthy did no more than reply to the applicant's request for his file, there being no evidence that he ever used the applicant's personal information in any other way. When requesting a copy of his file, the applicant has necessarily given his consent to the officers at the Centre to process his request and determine whether it should be granted: in these circumstances, to request that an act be done must necessarily carry with it an implied consent to the doing of that act. Consequently, the actions of persons at the Centre in giving effect to the applicant's request are not contrary to section 17 of the Act. 21 During the course of the final hearing the applicant advised that he did not wish to press an earlier argument that information on his file was incorrect, and therefore should be amended. Consequently, there is no need for this issue to be determined here. 22 Given the findings of the Tribunal there is no need to consider the respondent's summary judgment application, nor it's associated application to allow time to adduce further evidence going to the merits. Equally there is no utility in considering the question whether the application to the Tribunal is incompetent, as it was not brought within time. This would just be an academic issue in the circumstances and the Tribunal has formed the view that it the preferable decision to hand down is one going to the merits of the application. This would better enable the applicant to understand why he has been unsuccessful in these proceedings. 23 The Tribunal notes that there is nothing in the evidence to establish any impropriety on the part of the respondent in dealing with the application, particularly in relation to sections 62 and 63 of the Act. The findings made by the Tribunal set forth above do not engage these provisions. 24 Consequently, the Tribunal holds that the respondent has not acted in breach of its privacy restrictions and affirms the decision under review.