Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DHU v Commissioner of Police, NSW Police Service [2018] NSWCATAP 282 Hearing dates: 3 August 2018 Date of orders: 28 November 2018 Decision date: 28 November 2018 Jurisdiction: Appeal Panel Before: S Higgins, Senior Member Dr J Lucy, Senior Member Decision: (1) Leave to appeal is refused. (2) The appeal is dismissed. Catchwords: APPEALS – Administrative Review – where, in 2018, the appellant made an application for external review of the conduct of the respondent under s 55(1) of the Privacy and Personal Information Protection Act 1998 (PPIP Act) –where, on the application of the respondent the Tribunal dismissed the appellant's application as it found that the appellant's 2016 complaint to the respondent was not a request for internal review under s 53(1) of the PPIP Act - whether dismissal decision interlocutory or ancillary – whether Tribunal erred in dismissing the appellant's application – no error found Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Regulation 2014 (NSW) Civil Procedure Act 2005 (NSW) Criminal Records Act 1991 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: AQO v Minister for Finance and Services [2016] NSWCA 248 CCM v University of Western Sydney [2016] NSWCATAP 18 Collins v Urban [2014] NSWCATAP 17 CYL v YZA [2017] NSWCATAP 105 Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 Pearce v AQO [2015] NSWCATAP 162 PC v University of New South Wales (GD) [2005} NSWADTAP 72 Spicer v Owners Corporation SP 64558 [2016] NSWCATAP 11 Y v Director General, Department of Education & Training [2001] NSWADT 149 Texts Cited: Nil Category: Principal judgment Parties: DHU (Appellant) Commissioner of Police, NSW Police (Respondent) Representation: Counsel: H Mann (Appellant) J Edwards (Respondent) File Number(s): AP 18/24673 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. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2018] NSWCATAD 126 Date of Decision: 30 April 2018 Before: S Montgomery, Senior Member File Number(s): 2018/0035900 Reasons for decision Introduction 1. On 5 October 2016, the appellant, DHU, emailed a 'formal complaint' to the Criminal Records Section of the respondent, the Commissioner of Police, NSW Police Force. In that email the appellant advised that he had recently lost his job 'due to the criminal record section mistakenly releasing' his criminal record to his employer. The 'mistake' to which the appellant was referring was the inclusion of his spent convictions in the criminal record the Criminal Record Section had forwarded to his employer. It is accepted that, under Part 2 of the Criminal Records Act 1991 (NSW), the appellant's spent convictions were not disclosable at that time. 2. On 2 February 2018, the appellant, DHU, made an application to the Tribunal under s 55(1) of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act). In that application, the appellant sought external review of conduct by a delegate of the respondent in releasing the abovementioned criminal record to his employer. 3. On 30 April 2018, on the application of the respondent, the Tribunal, in the Administrative and Equal Opportunity Division, dismissed the appellant's application for want of jurisdiction on the grounds that the requirements of s 55(1) of the PPIP Act had not been satisfied because the appellant's 'formal complaint' was not an internal review request falling within the terms of s 53(1) of the PPIP Act. 4. The Tribunal subsequently published its written reasons for decision: see DHU v Commissioner of Police, NSW Police Service [2018] NSWCATAD 126. 5. The appellant has appealed that decision which is an internally appealable decision by the Appeal Panel: see Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), ss 32 and 80(1). However, there is an issue whether the decision of the Tribunal was an ancillary or an interlocutory decision. If the latter, the appellant must obtain leave from the Appeal Panel in order to appeal: see NCAT Act, s 80(2)(a). If it is the former then an appeal lies to the Appeal Panel as of right on a question of law, or with the leave of the Appeal Panel on any other grounds: see NCAT Act, s 80(2)(b). 6. We have decided that the decision dismissing the application is an ancillary decision from which the appellant may appeal, on a question of law, as of right. For the reasons set out below, we have dismissed the appellant's appeal, as we are not satisfied that the Tribunal erred in law or otherwise as contended by the appellant. Appellant's Notice of Appeal 1. In his Notice of Appeal, the appellant relied on three grounds of appeal as follows: 1. The Tribunal erred in concluding that on their fair reading the Emails did not reasonably convey to the Respondent that the Appellant was seeking an internal review of the Conduct. 2. The Tribunal erred in concluding that for a document otherwise satisfying the requirements in S 53(3) of the PPIP to be an application for internal review, it must not only reasonably convey that the applicant is requesting a review of a particular conduct involving information constituting 'personal information' is within the meaning of s3 of the PPIP, but must also expressly indicate that such request relates to privacy and/or is made under the PPIP (PPIP Identification). 3. To the extent that Previous Appeal Panel Decisions are interpreted to impose on the applicant a requirement of PPIP Identification in circumstances of this case, that is where the complaint was made by a member of the public to a public sector agency with which he or she has no pre-existing relationship (such as, for example, and ongoing employment relationship), they were wrongly decided. 1. The appellant explained that the 'Previous Appeal Panel Decisions' were PC v University of New South Wales (GD) [2005] NSWADTAP 72 and CCM v University of Western Sydney [2016] NSWCATAP 18. 2. Counsel for the appellant elaborated on these grounds in her written submissions, submissions in reply and during oral submissions at the hearing. In this regard counsel pointed out that the appellant's main ground of appeal was ground 2, which is contended to raise a question of law in that the Tribunal erred when formulating the 'test' that needed to be satisfied for a particular communication to constitute an application for internal review. Reply to Appeal 1. In his Reply to Appeal, the respondent, through his counsel, supported the orders made by the Tribunal 'for substantially the same reasons as those provided by the Tribunal in its reasons for decision'. The respondent also included a detailed response to the appellant's grounds of appeal, which were expanded on in the respondent's written and oral submissions at the hearing. We have dealt with these below. The appellant's 2016 emails to the respondent 1. The 2015 emails of the appellant, the substance of which the Tribunal found did not amount to a request for internal review under s 53(1) of the PPIP Act, are set out in full, at [5] to [7], in its reasons for decision as follows: '5 In 5 October 2016 DHU sent an email ("the 5 October email") to the Police Criminal Records Section ("the CRS") and expressed concern about the release of his criminal record to his employer. He wrote: "To whom it may concern, I have recently lost my job due to the criminal record section mistakenly releasing my criminal record to my employer. This was admitted as a mistake on the 20th September by the supervisor Nadia and I was given an apology. This mistake has cost me my job, embarrassed me, damaged my reputation and caused me major stress. This email is a formal complaint into this matter and I am seeking legal advice. I look forward to your reply." 6 On 9 October 2016, DHU sent a further email ("the 9 October email") to the following effect: "To The Criminal Section Unit, Further to my last email above, I have not received any acknowledgement from this and am still waiting. Could I get some sort of resolve from this matter please." 7 On 11 November 2016, DHU sent a response ("the 11 November email") to an email from a Senior Records Release Officer to the following effect: Thank you for your email. I look forward to the response that The Criminal Records Section will conclude. This error has completely turned upside down my working career and personal life and I will be expecting a reasonable outcome. I have gained legal advice and will further make involved their services pending the response of The Criminal Records Section.' 1. We note from the bundle of agreed documents filed by the parties that in its 11 November 2016 email to the appellant, the Criminal Records Section acknowledged that the appellant's 'complaint' had been received and that the issues he had raised 'would be investigated'. No further action was taken. PPIP Act 1. The PPIP Act prescribes a number of 'information protection principles' that apply to a public sector agency in regard to the collection of 'personal information' and the retention, access, alteration, use and disclosure of 'personal information' held by the agency: see PPIP Act, s 20. 2. Section 21(1) of the PPIP Act provides that a public sector agency must not do anything, or engage in any practice, that contravenes an information protection principle. A contravention by a public sector agency of an information protection principle that applies to a public sector agency is conduct to which Part 5 of the Act applies: PPIP Act, s 21(2). 3. The 'information protection principles' are set out in ss 8 to 19 of Division 1 of Part 2 of the PPIP Act. 4. The term 'personal information' is defined in s 4 of the PPIP Act. That section relevantly provides: 4 Definition of "personal information" (1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion. 1. There is no dispute that the information concerning the appellant's criminal record is 'personal information'. 2. As noted in s 21(2) of the PPIP Act, Part 5 of that Act makes provision for the review of certain 'conduct' of a public sector agency, including conduct is or is alleged to be a 'contravention by a public sector agency of an information protection principle that applies to the agency': PPIP Act, s 52 (1)(a). 3. Section 53 in Part 5 makes provision for a review (internal review) of conduct falling within s 52. 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. (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." 1. Section 53 goes on to prescribe who within the agency is to undertake an internal review, what material the internal reviewer must consider and what action can be taken on completion of the review. Subsection 53(6) provides that an internal review is to be completed as soon as is reasonably practicable in the circumstances. Where 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". 2. Section 53(7) of the PPIP Act sets out what action the agency can take following the completion of its review as follows: (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. 1. Section 55, in Part 5, makes provision for external review of the agency's conduct. That section is in the following terms: 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. Section 55(2) sets out the actions the Tribunal can decide to take on reviewing the conduct of the agency. These actions are similar to those contained in s 53(7). Ancillary or Interlocutory decision 1. As indicated earlier, it is necessary to determine whether the Tribunal's decision to dismiss the appellant's application was ancillary or interlocutory, because leave to appeal is required if the decision is interlocutory, but otherwise leave is not required on any question of law (NCAT Act, s 80(2)). 2. The terms "ancillary decision" and "interlocutory decision" are defined in s 4(1) of the NCAT Act as follows: "ancillary decision of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including: (a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and (b) a decision concerning the awarding of costs in proceedings." "interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following: (a) the granting of a stay or adjournment, (b) the prohibition or restriction of the disclosure, broadcast or publication of matters, (c) the issue of a summons, (d) the extension of time for any matter (including for the lodgment of an application or appeal), (e) an evidential matter, (f) the disqualification of any member, (g) the joinder or misjoinder of a party to proceedings, (h) the summary dismissal of proceedings, (h1) the granting of leave for a person to represent a party to proceedings, (i) any other interlocutory issue before the Tribunal." 1. In Pearce v AQO [2015] NSWCATAP 162, the appellant (the respondent below), the then Minister for Finance and Services, appealed the decision of the Tribunal that his position fell within the definition of a "public sector agency" under s 3(1) of the PPIP Act. The appellant had raised this issue, as a preliminary issue before the Tribunal below. 2. At [12], the Appeal Panel said that 'a ruling as to jurisdiction is an "ancillary" decision for the purpose of the NCAT Act (see s 4)'. 3. On appeal to the Court of Appeal, this aspect of the decision of the Appeal Panel was not challenged: see AQO v Minister for Finance and Services [2016] NSWCA 248. However, Basten JA briefly dealt with the jurisdiction of the Appeal Panel and what approach is to be taken to determining whether a decision is an ancillary decision or an interlocutory decision. His remarks are obiter, but we note what his Honour said at [127] and [128] (citations omitted): 127 … [It] is true that there is a specific reference to a decision regarding the jurisdiction of the Tribunal in the definition of ancillary decision and it may be inferred that the Appeal Panel thought that the specific reference to jurisdiction determined the issue. However, it appears from the chapeau to the definition of ancillary decision that one must determine that the decision is "other than an interlocutory decision" before coming to specific paragraphs which identify, non-exhaustively, what is meant by the term. If jurisdiction were determined as part of the final determination of a matter by the Tribunal, it might constitute an ancillary decision; however the refusal of a summary dismissal application, albeit based on an alleged absence of jurisdiction, is almost certainly an interlocutory issue, falling within either par (h) or par (i) of the definition of interlocutory decision. 128 A contrary approach might rely upon what appears to be an internal inconsistency in the chapeau to the definition of ancillary decision, which envisages a decision which is "preliminary to" a final determination but is not an interlocutory decision. It is unfortunate that members of the public, in seeking to resolve disputes before a Tribunal which is meant to facilitate the just, quick and cheap resolution of the real issues in proceedings, and which is required to dispense with formality, are faced with such potentially confusing provisions 1. In Spicer v Owners Corporation SP 64558 [2016] NSWCATAP 11, the appellant appealed from a decision of the Tribunal in the Consumer and Commercial Division dismissing the appellant's claim and a decision to make an order for costs in favour of the respondent. The claim was dismissed because the respondent (applicant below) had failed to provide a certificate as required under s 183(4) of the Strata Schemes Management Act 1996 (NSW). 2. The Appeal Panel, in determining whether leave to appeal was required, adopted the approach outlined by Basten JA and found, at [66] to [71], that the decision of the Tribunal in dismissing the proceedings before it was an interlocutory decision. This was because that decision was made on the bases of the proceedings having been withdrawn and the Tribunal did not finally determine the appellant's claim as it was open to the appellant to make a further application if a certificate was provided. The Tribunal went on to note, at [72], that the position in regard to the Tribunal's decision on costs was less clear. However, adopting the same approach, at [75], the Appeal Panel found that the Tribunal's costs decision was an ancillary decision. 3. In Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65, the decision the subject of appeal was a 'set aside' decision of the Tribunal in the Consumer and Commercial Division under cl 9 of the Civil and Administrative Tribunal Regulation 2014 (NSW) (NCAT Reg). At [38], the Appeal Panel found that the decision was not an 'interlocutory decision' and on that bases it found that it was an 'ancillary decision'. 4. In our view, while the respondent characterised its application before the Tribunal as a summary dismissal application, this alone does not mean that the decision of the Tribunal falls within para (h) of the meaning of interlocutory decision. The term 'summary dismissal' is not defined in the NCAT Act. In Spicer, at [68], the Tribunal noted that, by analogy the expression 'summary dismissal' in the NCAT Act would include (if these were court proceedings) dismissing the proceedings because they were "frivolous, vexatious, misconceived or lacking in substance" as set out in the Civil Procedure Act 2005 and Part 13.4 of the Uniform Civil Procedure Rules 2005- Summary Disposal. 5. Section 55 of the NCAT Act sets out the Tribunal's power to dismiss proceedings, which includes dismissing proceedings on this ground. That section relevantly provides: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances: (a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate, (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings, (d) if the Tribunal considers that there has been a want of prosecution of the proceedings. 1. We are satisfied that the decision is not an interlocutory decision, because it does not fall within any of the paragraphs in the meaning of 'interlocutory decision'. While the decision falls within s 55(1)(b) of the NCAT Act, in our opinion it cannot be defined as a 'summary' decision because it effectively determined to finality the administrative review application of the appellant. 2. Accordingly we find that the decision is an ancillary decision. This means that the appellant does not need leave to appeal on a question of law. Grounds of appeal 1. We have dealt with the appellant's ground of appeal no 2 first as this is the appellant's main ground of appeal. Ground 2 – the applicable test 1. The appellant agreed with the following summary of the Tribunal, at [41] to [44], as to the applicable principles in determining whether a particular communication constituted an application for internal review under s 53 of the PPIP Act. 41 There is no power in the Tribunal to dispense with the requirement for an application for internal review, pursuant to section 53 of the PPIP Act. In order to constitute an application for internal review, DHU's emails must, upon their face, reasonably convey to the agency that an application for internal review is sought. 42 The test is an objective one. The Tribunal does not insist on any particular formality. It's not necessary for DHU to have named the PPIP Act or to refer to any specific IPP. 43 I have referred to the decisions by President O'Connor in PC v University of New South Wales and Y v Director-General, Department of Education. The views that the President expressed there have been widely applied in this Tribunal and in the Administrative Decisions Tribunal. 44 I agree with the Commissioner that the test is whether or not the documents relied upon reasonably convey to the agency that DHU was seeking an internal review. 1. In oral submissions, the appellant contended that the test of "whether or not the documents relied upon reasonably convey to the agency" that a person/complainant was seeking an internal review involved three requirements: 1. The conduct of the agency is identified; 2. the conduct is a possible breach of an information protection principle; and 3. the person wants the conduct to be reviewed by the agency. 1. The appellant contends that where the Tribunal erred, was to impose additional requirements. These were that the document/communication must raise 'something about privacy', refer to the communicator's 'privacy', or include an indication 'that the release was related to the complainant's privacy'. These alleged errors are said to have occurred at [45], [50] and [51] of the Tribunal's reasons for decision: 45 DHU's emails do not mention the legislation, IPPs or the concept of privacy at all. While I agree that it's not necessary to refer to the PPIP Act or the IPPs, in my view the absence of any reference to those matters is something the Tribunal can take into account when determining whether or not a particular document is an application under the section." … 50 If DHU had intended that his emails be treated as a privacy internal review request, I would have expected that the correspondence would raise something about his privacy. I would have expected that there would be some reference to privacy in the communications between DHU and the agency. There is nothing in any of this material that suggests that he referred to his privacy at all. 51 In the circumstances, the views expressed by President O'Connor in PC v University of New South Wales are apposite. I do not think that compliance with the PPIP Act requires an agency to consider every complaint that it receives in terms of the privacy legislation. To engage that obligation there would need to be some reference, either direct or by natural inference, to the release of personal information and an indication that the release was related to the complainant's privacy. DHU's emails do not do that directly and nor can that be naturally inferred as his intention. 1. The appellant argues that these additional requirements effectively require a member of the public to include some reference to privacy, or the PPIP Act, neither of which are required under s 53(3) of the PPIP Act when making an application for internal review. 2. The respondent contends that, on a fair reading of the Tribunal's reasons for decision, the abovementioned references to the appellant's failure to refer to his privacy were simply matters that were open to the Tribunal to take into account in determining whether the test, as stated in PC v University of New South Wales [2005] NSWCATAP 72, had been met. 3. In our view, for the reasons that follow, we are not persuaded by the appellant's contentions. 4. First, there is no dispute that the test, as set out, at [28], in PC v University of New South Wales, is the applicable test that has been consistently applied by the Tribunal in determining whether a particular communication of a member of the public to a public sector agency is, in fact, a request for internal review under the PPIP Act. It is convenient repeat what was said in PC, at [26] to [29]: 26 The finding that the appellant seeks to have reviewed by this Tribunal [Appeal Panel], is a finding of fact. It is not open to the Tribunal [Appeal Panel] to review that finding of fact, unless the appeal is extended to the merits. 27 The Tribunal [Appeal Panel] 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. 1. It is accepted that the PPIP Act is beneficial legislation and as demonstrated in the decisions referred to by the Tribunal below, the Tribunal has not rigidly required that a request for review of conduct expressly state that the request is made under the PPIP Act. However, as noted by the Tribunal, at [19] and [46], the Tribunal has consistently required that the surrounding context and the contents of the communication reasonably convey to the public sector agency that 'a statutory right is being invoked': see Y v Director General, Department of Education & Training [2001] NSWADT 149, at [16]. 2. That right being a right to have 'conduct' of the agency being reviewed. As we have noted above, s 53(1) of the PPIP Act expressly states that a person who is 'aggrieved by the conduct' of an agency is entitled to a review of 'that conduct'. As noted by the Appeal Panel in CYL v YZA [2017] NSWCATAP 105, at [58], the word 'conduct' in that section means 'conduct' falling within s 52 of that Act: "58 … ['Conduct'] is the expression used in this area of the law to describe action by the agency or circumstances involving the agency that might amount to a possible contravention of an information protection principle: see PPIPA s 52. There needs to be material that can be understood by the agency, fairly read, as connecting the action or circumstances of concern to a principle, whether or not the principle itself is actually specified by the application." (bold added) 1. Accordingly, the Tribunal has regularly accepted that factors such as references (direct or indirect) to the PPIP Act, privacy, personal information, an information protection principle, or a remedy of the kind referred to in s 53(7) of the PPIP Act are matters that can be taken into account in determining whether the communication relied on by an applicant, does on its face, reasonably convey to the respondent agency, that an application for internal review is being sought. No single factor is necessarily determinative as to whether the test is met, it will depend on the particular circumstances of each individual case that are to be objectively assessed in making a finding that the communication is in fact a request for internal review under s 53 of the PPIP Act. 2. In our view, the Tribunal appropriately identified and applied the test as set out in PC v University of New South Wales. On the material before it, we also find that the Tribunal's reference to the appellant's emails having failed to raise "something about privacy", refer to his "privacy", or include an indication "that the release was related" to his "privacy", were matters the Tribunal took into account in determining whether the test was met and not a restatement of the test that included these matters. Furthermore, they were matters that the Tribunal was entitled to have regard to. 3. Accordingly, we do not find that the Tribunal erred in imposing additional requirements to the test in PC v University of New South Wales as the appellant contends. Nor do we accept the appellant's categorisation of what is needed to satisfy the test. In our view, the approach taken by the Tribunal was the correct approach. Ground 3 – existing case law 1. In our view, this ground is merely a restatement of Ground 2 in that the appellant argues that the test in the decision of PC v University of New South Wales does not go further to require a communication to convey to an agency that it is an application for internal review relating to "privacy", or more specifically, an application under the PPIP Act. It is contended that CCM v University of Western Sydney [2016] NSWCATAP 185, at [18], goes further and was wrongly decided. 2. For the reasons we have given above, in our view, the remarks of the Appeal Panel in CCM, at [18], are no more than a reference to a factor that was relevant to the factual circumstances in that case in determining whether the test in PC had been met. 3. Accordingly, we find that the appellant has failed to establish this ground of appeal. Ground 1 – the Tribunal erred in its finding that the emails of the appellant were not an internal review request 1. In this ground of appeal the appellant essentially relies on the same arguments relied on in ground 2. The appellant submitted that, if that ground succeeds, and we find that the Tribunal erred in law and that the decision of the Tribunal is an ancillary decision, this ground would form part of our final determination. However, in the event we find that leave to appeal is required, this ground is relied on. 2. In this regard the appellant has addressed each of the matters referred to in Collins v Urban [2014] NSWCATAP 17, at [84] which ordinarily give rise to a grant of leave to appeal, namely: 1. issues of principle, 2. questions of public importance or matters of administration or policy that may have general application, 3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand, 4. a factual error that was unreasonably arrived at and clearly mistaken, or 5. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 1. For the reasons set out above, no issues of principle have been found. Instead we have found that the Tribunal applied the proper test and took into account matters relevant to determining whether that test was satisfied. Nor have we found that the Tribunal went about its fact finding process in an unorthodox manner. Instead we find that the findings made by the Tribunal were open to it on the undisputed evidence before it. 2. While we understand that the appellant may have a sense of injustice, we can find no injustice in the manner in which the Tribunal dealt with the matter before it. 3. Accordingly, we find that the appellant has failed to demonstrate any error in the Tribunal's conclusion, or reasoning on which that conclusion was based, that on their fair reading the 2015 emails of the appellant did not reasonably convey to the respondent that he was seeking and internal review of its conduct under s 53 of the PPIP Act. Hence, the appellant's application for leave to appeal also fails. Conclusions and Orders 1. For the reasons set out above the appellant has failed to identify an error of law in the Tribunal's decision or reasons for decision. The appellant has also failed to establish an error that warrants the grant of leave to appeal. 2. On this basis we make the following orders: 1. Leave to appeal is refused. 2. The appeal is 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: 28 November 2018