Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CME v University of Technology Sydney [2017] NSWCATAP 178 Hearing dates: 11 August 2017 Date of orders: 24 August 2017 Decision date: 24 August 2017 Jurisdiction: Appeal Panel Before: N Hennessy LCM, Deputy President J Currie, Senior Member Decision: (1) The decision of the Tribunal made on 19 April 2017 is set aside. (2) The matter is remitted to the Tribunal as originally constituted to reconsider University of Technology Sydney's application for summary dismissal and provide adequate written reasons for the decision. (3) The appeal is otherwise dismissed. Catchwords: APPEAL – question of law – adequacy of reasons – oral reasons given in course of hearing – no reference to alleged conduct identified in applicant's application for review of the respondent's conduct - whether reasons adequate Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 55(1)(b), s 64 Privacy and Personal Information Protection Act 1998 (NSW), s 6, s 55. Cases Cited: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Collins v Urban [2014] NSWCATAP 17 Category: Principal judgment Parties: CME (Appellant) University of Technology Sydney (Respondent) Representation: Appellant (self-represented) Solicitors: T Magoulas (Respondent) File Number(s): AP 17/23928 Publication restriction: The publication of the name of the appellant is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).Note: the name of the appellant includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: Not applicable Date of Decision: 19 April 2017 Before: S Montgomery, Senior Member File Number(s): 2016/00377932 REASON FOR DECISION Overview 1. CME is aggrieved because AustLII has not removed a decision about her from its website. The decision, made by the Victorian Civil and Administrative Tribunal (VCAT) in 2000, contains personal information about CME. CME says that AustLII's conduct, including the collection, use and disclosure of the information in the decision, is in breach of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act). After a hearing the Tribunal dismissed CME's application as "lacking in substance". CME has appealed to the Appeal Panel from that decision. 2. CME did not ask the Tribunal to provide written reasons for the decision to dismiss her application. We have decided that the oral reasons the Tribunal gave during the hearing were not adequate. We have sent the matter back to the Member who heard it to reconsider the respondent's application to dismiss the application and write adequate reasons for the decision. Background 1. AustLII (the Australasian Legal Information Institute) is an institution operated jointly by the Faculties of Law of the University of Technology Sydney (UTS) and the University of New South Wales (UNSW). 2. At the hearing, Mr Magoulas, representing UTS, gave some evidence about AustLII and its functions. There was no dispute that UTS is a public sector agency and is subject to the provisions of the PPIP Act. 3. In the course of that evidence, Mr Magoulas said that, "AustLII is not the publisher of court decisions" and "AustLII is not able to remove the decision without the permission of VCAT …". CME then gave evidence about what had happened and maintained that UTS, as a public sector agency, has responsibility for the material that is publishes on the AustLII website. Mr Magoulas responded by repeating his evidence that UTS was not the publisher. It was his evidence that the particular court or tribunal decides whether to publish its decisions on the AustLII website. CME accepted that VCAT decides which decisions are published but asked why AustLII does not obtain the consent of the parties before it publishes personal information about them online. Mr Magoulas' response was that only the owner of the copyright, in this case VCAT, has to give permission for their work to be published. 4. Mr Magoulas denied that UTS collected the information in the decision that was published on the AustLII website. He said VCAT collected that information. CME claimed that UTS could use their "discretionary power to take down the publication". 5. The Member inquired as to whether there was a contractual agreement between VCAT and AustLII that governs their relationship. No agreement was in evidence but UTS wrote in the internal review decision of 8 February 2016, that, "VCAT pays a subscription to AustLII to have its decisions published on the AustLII website on their behalf". UTS provided a link where details of VCAT's current subscription are publicly available. 6. Even without evidence of any agreement, the Tribunal told the parties that s 6 of the PPIP Act was an obstacle to CME's case. That provision states that: 6 Courts, tribunals and Royal Commissions not affected (1) Nothing in this Act affects the manner in which a court or tribunal, or the manner in which the holder of an office relating to a court or tribunal, exercises the court's, or the tribunal's, judicial functions. (2) Nothing in this Act affects the manner in which a Royal Commission, or any Special Commission of Inquiry, exercises the Commission's functions. (3) In this section, "judicial functions" of a court or tribunal means such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it, and includes: (a) in relation to a Magistrate-such of the functions of the Magistrate as relate to the conduct of committal proceedings, and (b) in relation to a coroner-such of the functions of the coroner as relate to the conduct of inquests and inquiries under the Coroners Act 2009. 1. The Member said that the "important words" in s 6 were "relate to" in s 6(3) of the PPIP Act. Because the words "relate to" are "a very broad expression", the Member reasoned that the decision to upload the decision amounts to a judicial function within the meaning of that term in s 6 of the PPIP Act. The Tribunal was satisfied on that basis that the exception in s 6 applied. The Tribunal granted the application for summary dismissal and said the reasoning had been explained. Consideration 1. The Tribunal has power to review the conduct that is the subject of the applicant's application to UTS: PPIP Act, s 55. The conduct identified by the Member was "a decision of VCAT to upload the Decision". The Tribunal appears to have been of the view that s 6 of the PPIP Act was an insuperable barrier to the success of CME's application. On that basis the Tribunal dismissed the application as lacking in substance. 2. In dismissing the application, the Tribunal did not give reasons for its view that CME's entire application should be dismissed. That application requested a review of UTS's alleged conduct, not the conduct of VCAT. The conduct CME identified in her application, or which was addressed by UTS in the internal review decision, was that UTS had: 1. collected CME's personal information contained in the VCAT decision without CME's knowledge or consent; 2. used CME's personal information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading; and 3. disclosed CME's personal information through its publication on the AustLII website without CME's knowledge or consent. 1. The Tribunal must give adequate reasons for its decision: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33, [47]-[58]; Collins v Urban [2014] NSWCATAP 17 at [56]. The Tribunal's reasons for dismissing CME's application as lacking in substance were not adequate because they did not address all the conduct CME identified in her application to UTS. Nor did the Tribunal's reasons identify and explain the legal test to be applied when determining whether to dismiss an application under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The decision to dismiss CME's application should be set aside and the matter returned to the Member who made the decision. The Member should re-consider UTS's application for CME's application to be summarily dismissed and provide adequate written reasons. In the interests of not inadvertently breaching CME's privacy, the decision should not refer to the name or citation for the VCAT decision the subject of these proceedings. Orders 1. The decision of the Tribunal made on 19 April 2017 is set aside. 2. The matter is remitted to the Tribunal as originally constituted to reconsider University of Technology Sydney's application for summary dismissal and provide adequate written reasons for the decision. 3. The appeal is otherwise dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 24 August 2017