CCM v University of Western Sydney trading as Western Sydney University [2016] NSWCATAP 185

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CCM v University of Western Sydney trading as Western Sydney University [2016] NSWCATAP 185 Hearing dates: 22 June 2016 Date of orders: 16 August 2016 Decision date: 16 August 2016 Jurisdiction: Appeal Panel Before: D Patten, Principal Member G Walker, Senior Member Decision: (1) Appeal dismissed. (2) No order as to costs. Catchwords: Finding of no jurisdiction – no error Legislation Cited: Civil and Administrative Tribunal Act Privacy and Personal Information Protection Act 1998 Administrative Decision Review Act 1997. Category: Principal judgment Parties: CCM (Appellant) University of Western Sydney (Respondent) Representation: Counsel: B Tronson (Respondent)

Solicitors: CCM (Appellant in person) File Number(s): AP 16/18086 Publication restriction: No publication of the identity or the name of the appellant Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Date of Decision: 22 February 2016 Before: J Lucy, Senior Member File Number(s): 1510425

REASONS FOR DECISION 1. This is an appeal from a decision of the Tribunal below (Senior Member Lucy) dismissing the proceedings on the basis that the Tribunal had no jurisdiction to hear them. As a jurisdictional decision is an ancillary decision within s 4(1)(a) of the Civil and Administrative Tribunal Act 2013, no leave to appeal is required provided that a question of law is raised (s 80(2)(b)). The appellant's grounds of appeal can be viewed as raising questions of law, including whether the tribunal gave weight to an irrelevant consideration, whether it denied procedural fairness by refusing an adjournment and whether it gave insufficient reasons. 2. The case arises by virtue of sections 53 and 55(1) of the Privacy and Personal Information Protection Act 1998 (the Act): 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. (1A) There is no entitlement under this section to the review of the conduct of a Minister (or a Minister's personal staff) in respect of a contravention of section 15 (Alteration of personal information). Note. Any such conduct can still be administratively reviewed by the Tribunal. See section 55 (1A). (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) Except as provided by section 54 (3), the application must be dealt with by an individual within the public sector agency who is directed by the agency to deal with the application. That individual must be, as far as is practicable, a person: (a) who was not substantially involved in any matter relating to the conduct the subject of the application, and (b) who is an employee or officer of the agency, and (c) who is otherwise suitably qualified to deal with the matters raised by the application. (5) In reviewing the conduct the subject of the application, the individual dealing with the application must consider any relevant material submitted by: (a) the applicant, and (b) the Privacy Commissioner. (6) The review must be completed as soon as is reasonably practicable in the circumstances. However, if the review is not completed within 60 days from the day on which the application was received, the applicant is entitled to make an application under section 55 to the Tribunal for an administrative review of the conduct concerned. (7) Following the completion of the review, the public sector agency whose conduct was the subject of the application may do any one or more of the following: (a) take no further action on the matter, (b) make a formal apology to the applicant, (c) take such remedial action as it thinks appropriate (eg the payment of monetary compensation to the applicant), (d) provide undertakings that the conduct will not occur again, (e) implement administrative measures to ensure that the conduct will not occur again. (7A) A public sector agency may not pay monetary compensation under subsection (7) if: (a) the applicant is a convicted inmate or former convicted inmate or a spouse, partner (whether of the same or the opposite sex), relative, friend or an associate of a convicted inmate or former convicted inmate, and (b) the application relates to conduct of a public sector agency in relation to the convicted inmate or former convicted inmate, and (c) the conduct occurred while the convicted inmate or former convicted inmate was a convicted inmate, or relates to any period during which the convicted inmate or former convicted inmate was a convicted inmate. (8) As soon as practicable (or in any event within 14 days) after the completion of the review, the public sector agency must notify the applicant in writing of: (a) the findings of the review (and the reasons for those findings), and (b) the action proposed to be taken by the agency (and the reasons for taking that action), and (c) the right of the person to have those findings, and the agency's proposed action, administratively reviewed by the Tribunal. 55 Administrative 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 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. 1. The factual matrix is that at relevant times the appellant was employed as an Associate Professor at the University of Western Sydney. She was aggrieved by an email sent by Ms Sophie Buck, Assistant Academic Registrar to Ms Isobelle Anderson: Dear Isobelle, As you may be aware, an employee of the University, Associate Professor CCM is currently the subject of an investigation being conducted by an external investigator, Workdynamic Australia, engaged by the University. Workdynamic has identified that it would like to interview you as part of its investigation. Before the University provides your contact details to Workdynamic, we seek your consent to do so. If you could let me know by return email if you consent for your contact details to be provided to the external investigator by return email, it would be much appreciated. Kind regards, Sophie Buck Assistant Academic Registrar, Student Administration (Operations) Academic Registrar's Office, University of Western Sydney Locked Bag 1797 Penrith NSW Tel +61 2 47360690 Fax +61 2 47360614 Mob 0410410484 Email s.buck@uws.edu.au 1. For the purpose of the matter before us it may be assumed that the above email could give rise to a contravention of an information protection principle or a privacy code of practice or the disclosure of personal information by a public sector agency within s 52 of the Act. 2. On 13 June 2014 at 1 pm the appellant sent an email to Mr Mark Cartwright From: (CCM) Sent: Friday, 13 June 2014 1:00 PM To: Mark Cartwright Subject: FW: Private and Confidential Importance: High Dear Mark The below trimmed document has been brought to my attention as being accessible to a Level 6 Professional staff member in the Badanami Centre for Indigenous Education. As the nature of this investigation is deemed to be Confidential, having me named in the email that is also marked Private and Confidential is a risk to UWS in the breach of my privacy and the matter at hand. Regards (CCM) Associate Professor (CCM) Associate Director (Academic Progr Badanami Centre for Indigenous Education 1. On the same date at 1.08 pm she sent an email to Sui Wah Wan: From: (CCM) Sent: Friday, 13 June 2014 1:08 PM To: Siu Wah Wan Subject: FW: Private and Confidential Importance: High Dear Wan I sent the email and attached emails (below) to Mark Cartwright - his out of office email advised that you were the person to contact in the Office of Audit and Risk Assessment. Please see my email that I sent to Mark. Regards(CCM) 1. Three days later the appellant wrote to the Vice Chancellor and the Deputy Vice Chancellor (Corporate Strategy and Services): 16 June 2014 Professor Barney Glover Vice-Chancellor Office of the Vice-Chancellor University of Western Sydney Rhonda Hawkins Deputy Vice Chancellor (Corporate Strategy and Services) Office of the Vice-Chancellor University of Western Sydney Dear Professor Glover and Rhonda As you are aware, on Friday 13 June 2014, it was discovered that the Assistant Academic Registrar, Sophie Buck, Student Administration (Operations) had trimmed an email into the UWS trims record archive, marked 'Private and Confidential' and sent to a recent graduate student, Isobelle Anderson. This email had been trimmed on 28 May 2014 to the unsecure site in TRIM with no Restricted Access applied to it, which made the email accessible to any staff of UWS. The email, which was brought to your attention on Friday 13 June 2014 by a Badanami Centre staff member: 1. Named me as the person who was the subject of an investigation being conducted by an external investigator, Workdynamic Australia, 2. Advised Isobelle that she was identified by Workdynamic to be interviewed as part of its investigation. 3. Identified Workdynamic Australia as being engaged by the university to conduct the investigation. When I was advised of this email and noted the significant breach of my privacy and the breach of the confidentiality of the investigation that involved me I was distressed; humiliated and extremely offended. Furthermore my name has been defamed; my character assassinated; and false and malicious rumours and information will be spread by UWS staff who accessed this email. The breach of my privacy and the confidentiality of the external investigator, Workdynamic Australia, has also compromised and prejudiced their current investigation Therefore, I cannot continue to respond to Workdynamic Australia with regards to their investigation. Further knowledge that Sophie Buck has been assisting with the compilation of allegations that were served on me on 18 November 2013 provides me with no confidence in the continued investigation of the allegations. I see the trimming of the noted email into the Trims common staff space, as deliberate. The actions of Sophie Buck has, therefore, compromised the integrity of the investigation as well as the integrity of the evidence she assisted in compiling for the Schedule of Allegations that were provided to me on 18 November 2013. Regards [SIGNED] Associate Professor (CCM) Associate Director (Academic) Badanami Centre for Indigenous Education V 1. The Deputy Vice Chancellor replied on 18 June: 18 June 2014 Associate Professor (CCM) Badanami Centre for Indigenous Education By email: (CCM)@uws.edu.au PRIVATE AND CONFIDENTIAL Dear Associate Professor (CCM) I refer to your letter to me and the Vice-Chancelior, Professor Barney Giover, dated 16 June 2014, regarding the filing of an email onto the University's eiectronic records management system, TRIM, by Sophie Buck, the Assistant Academic Registrar-Student. I note that the email in question was sent by Ms Buck to Isobelle Anderson, and: ● advised Ms Anderson that you are currently the subject of an investigation being conducted by Workdynamic Australia; ● further advised Ms Anderson that Workdynamic has identified that it would like to interview her as part of its investigation; and ● requested Ms Anderson's consent for her contact details to be released to Workdynamic so that she may be contacted as part of its investigation. The University's response to the issues raised in your letter is as follows: 1. it was determined that it would be appropriate for Ms Buck to communicate with Ms Anderson in the first instance given Ms Buck's role within the University; 2. the email to Ms Anderson contained the minimum amount of information required to ailow Ms Anderson to determine whether she did in fact consent to her contact details being released to Workdynamic. As noted above, the email did not disclose the substance of the allegations that are under investigation; 3. the University's Records Management Policy requires University staff to document all substantive official business on TRIM. I would also like to clarify that the emaii would have been accessible only to those University staff, who have access to student records, and not ali staff in general. In any event, access to the record in question was locked last Friday, 13 June 2014; 4. Ms Buck has advised that she was aware that the email was confidential correspondence and should be TRIMMED as a restricted file, and it was not her intention to have the email placed on the student's file with unrestricted access. The email was sent after hours and remotely, and it was cc'd to TRIM inadvertently; 5. there is no valid basis on which to consider that the integrity of the evidence used to formulate the allegations against you has been called into question as a result of the email being filed in TRIM; 6. the University does not consider that the filing of the email in TRIM has in any way compromised or prejudiced Workdynamic's investigation; and 7. in light of all of the above, the University is of the view that it is appropriate for Workdynamic's investigation to proceed, and a separate letter relating to your participation in the investigation will follow shortly. Yours sincerely [SIGNED] Rhonda Hawkins Deputy Vice-Chancellor. 1. The Deputy Vice Chancellor subsequently wrote two further letters to the appellant dated respectively 18 June 2014 and 23 June 2014: 18 June 2014 Associate Professor (CCM) Badanami Centre for Indigenous Education By email: (CCM)@uws.edu.au PRIVATE AND CONFIDENTIAL Dear Associate Professor (CCM) INVESTIGATION BY WORKDYNAMIC AUSTRALIA INTO ALLEGED SERIOUS MISCONDUCT I refer to the allegations of serious misconduct against you, and the investigation into those allegations that is being conducted by Workdynamic Australia ("Workdynamic"). I also refer to my letter to you dated 18 June 2014 June 2014, in which I responded to your concerns about the electronic filing of an email into TRIM and advised that Workdynamic's investigation would be proceeding. Background I understand that you met with Jonathan Wright from Workdynamic on 2 May 2014 after being directed by the University to do so. I also understand that: • Mr Wright asked you to return your record of interview by 22 May 2014, and provide further information by 30 May 2014; • on 28 May 2014, you advised Mr Wright that you were working through his requests and would respond by 6 June 2014; • Mr Wright did not receive any response from you by 6 June 2014; • on 11 June 2014, Mr Wright emailed you and requested that you provide the record of interview as a matter of urgency and advise when you would be in a position to provide the other material that he had requested; • Mr Wright subsequently left a voicemail message for you on 13 June 2014 • on 16 June 2014, you advised Mr Wright that the record of interview is not a true recording of your interview on 2 May 2014, and you are unable to sign the record as a true record; • on 16 June 2014, Mr Wright responded to you, reminding you that you are able to make any amendments to the document to ensure that it accurately represents your evidence, and requesting that you advise whether you are in the process of completing this task; • as at the date of this letter, you have not responded to Mr Wright's request. • as at the date of this letter, you have not responded to Mr Wright. Direction to respond to requests and co-operate in investigation As you will appreciate, it is imperative that you participate in Workdynamic's investigation and respond to any requests in a timely and co-operative manner. Your failure to do so is causing significant delays in this matter being finalised. Accordingly, you are directed to respond to the abovementioned requests that have been made by Mr Wright, and to co-operate in the investigation so that it may be completed and this matter concluded. To this end, you should make contact with Mr Wright immediately, and by no later than midday on Wednesday, 18 June 2014 to return your record of interview and provide the material that has been requested. The University considers this direction to be both lawful and reasonable. You should be aware that a failure to comply with a lawful and reasonable direction may result in further disciplinary action being taken against you. Yours sincerely [SIGNED] Rhonda Hawkins Deputy Vice-Chancellor 23 June 2014 Associate Professor (CCM) Badanami Centre for Indigenous Education By email: (CCM)@uws.edu.au PRIVATE AND CONFIDENTIAL Dear Associate Professor (CCM) I refer to my letter to you dated 18 June 2014, sent to you on Friday, 20 June 2014, concerning the allegations of serious misconduct against you, and the investigation into those allegations that is being conducted by Workdynamic Australia ("Workdynamic"), including Jonathan Wright. It has come to my attention that this correspondence was incorrectly dated. Please note that the correct date of the correspondence is 20 June 2014. Further, the direction contained in the second last paragraph of the letter, which requires that you make contact with Mr Wright immediately, and by no later than midday on Wednesday, 18 June 2014, is incorrectly dated and is corrected to require you make contact immediately, and by no later than midday on Wednesday, 25 June 2014. Yours sincerely [SIGNED] Rhonda Hawkins 1. In the meantime to appellant received and email from Ms Buck Dear A/Professor (CCM), I am emailing you to sincerely apologise for any embarrassment or distress I might have caused you through inadvertently trimming an email in an unrestricted fashion. I was asked by the Office of People and Culture to contact a student with a confidential request relating to information in relation to yourself. Although I have no recollection of doing this, I must have, out of habit, copied the TRIM email address in the BCC field when sending the request. This automatically TRIMS the email to the student TRIM file. I was completely unaware that I had done this until it was brought to my attention earlier this week. I am absolutely horrified that I had made this error and am hoping that you will accept my apology in relation to this matter. I understand that the email has been deleted from the students record. Kind regards, Sophie Buck Assistant Academic Registrar, Student Administration (Operations) Academic Registrar's Office University of Western Sydney 1. The appellant subsequently made application to the Tribunal purportedly under s 55 of the Act for administrative review under the Administrative Decision Review Act 1997. 2. The issue before the Tribunal below on the question of the Tribunal's jurisdiction was whether the appellant had made an application for internal review under s53 of the Act. Section 55(1) makes this an essential prerequisite to the right to commence proceedings in the Tribunal. 3. The appellant in effect submitted to the Tribunal below and to us that her letters reproduced above on a fair reading constituted a sufficient application within section 53(3) whereas the respondent submitted that it did not and was no more than a complaint about the conduct of Ms Buck and an expression of concern as to the impact of that conduct on the then pending inquiry into the appellant's alleged misconduct. 4. In its oral reasons given when declining jurisdiction the Tribunal referred to the absence in the material emanating from the appellant of any reference to a particular application being made, to the privacy legislation, or to any remedy being sought. The reasons contained: The reference in the letter to a breach of privacy is not in itself sufficient to mean that the document on its face reasonably conveys to the University that an application for internal review is sought. As the respondent submitted, a fair reading of this letter is that a breach of privacy is mentioned in the context of justifying the applicant's statement in the letter that "I cannot continue to respond to Work Dynamic Australia with regard to their investigation." The letter appears to be primarily concerned with an investigation which was underway into the conduct of the applicant and its focus is not upon seeking remedies or seeking reviews for breach of privacy. The letter ends with a statement that "the actions of Sophie Buck have compromised the integrity of the investigation as well the integrity of the evidence she assisted in compiling for the schedule of allegations that were provided to me on 18 November 2013". The conclusion of the letter thus also indicates that the letter is concerned with the integrity of the investigation rather than the applicant seeking any remedy for a privacy breach. The applicant contended that various actions taken by the University in response to her email and her letter indicated that it had treated her complaints as an application for internal review and it had partly complied with its obligations under s 53 of the Privacy and Personal Information Protection Act 1998 to conduct an internal review. I accept the respondent's submissions that those actions were actions taken to remedy a complaint and do not indicate that the University treated the correspondence from the applicant as an application for internal review. In those circumstances, I find that the applicant has not made an application for internal review and it follows that the Tribunal has no jurisdiction to determine her application to the Tribunal. Her application is dismissed 1. In her submission to us the appellant asserted that the Tribunal erred by giving weight to the fact that in her correspondence the appellant did not use the expression "internal review". The appellant also submitted that she was deprived of procedural fairness when she sought an adjournment to enable her to meet reference to decided cases relied upon by the respondent to which her attention had not been previously directed. The appellant also submitted that the Tribunal gave insufficient reasons for its decision. 2. In our opinion the refusal of an adjournment by the Tribunal below was entirely within its discretion and should not be interfered with on appeal. In our view there is no reason to think that the appellant was prejudiced by the Tribunals decision. 3. Having read and considered the appellant's somewhat repetitive written submissions and her oral submissions at the hearing we are of the opinion that the Tribunal was correct for the reasons it gave. 4. It correctly addressed the question whether a fair reading of the emails and letters by the appellant constituted an application for review within s 53. It acknowledged that no particular formality was required but correctly regarded as relevant the absence of any reference to the privacy legislation and the absence of any reference to a remedy being sought. Moreover in our view in the absence of any request for a remedy it was entitled to focus on what it saw as the purpose of the complaint namely to express concern about the then pending inquiry. There is of course no question that the appellant was making a complaint about the invasion of her privacy but that was not the issue before the Tribunal below. 5. Finally we reject the submission that the Tribunal's reasons were inadequate. As it seems to us the Tribunal addressed the correct issue, took account only of relevant matters and expressed clear reasons for its decision which we regard as correct. 6. The appeal should be dismissed.