Be v University of Technology, Sydney (GD)

[2009] NSWADTAP 22

Appeal Panel - Internal

CITATION:	BE v University of Technology, Sydney (GD) [2009] NSWADTAP 22
PARTIES:	APPELLANT BE RESPONDENT University of Technology, Sydney
FILE NUMBER:	089077
HEARING DATES:	31 March 2009
SUBMISSIONS CLOSED:	31 March 2009
DATE OF DECISION:	9 April 2009
BEFORE:	O'Connor K - DCJ (President)
CATCHWORDS:	Appeal – Out of Time – Application for Leave – Denied – Respondent’s Costs – Granted
DECISION UNDER APPEAL:	BE v University of Technology, Sydney [2008] NSWADT 139
FILE NUMBER UNDER APPEAL:	073230
DATE OF DECISION UNDER APPEAL:	05/14/2008
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Health Records and Information Privacy Act 2002 Legal Profession Act 2004 Privacy and Personal Information Protection Act 1998
CASES CITED:	BE v University of Technology, Sydney [2008] NSWADT 139 EN v University of Technology, Sydney [2009] NSWADT 50 Lupevo Pty Ltd t/a Ampol Nabiac v Bree [2002] NSWADTAP 9 Ministry of Transport v Kharbanda (GD) [2006] NSWADTAP 61 NZ v Commissioner of Police, New South Wales Police (GD) [2008] NSWADTAP 23
REPRESENTATION:	APPELLANT In person RESPONDENT R Henderson of counsel / Deacons
ORDERS:	1. Leave to appeal out of time is refused. 2. Appeal dismissed. 3. Appellant to pay the Respondent’s costs of and incidental to the appeal proceedings as agreed or as assessed in accordance with the Legal Profession Act 2004.

1 Provided a decision of the Administrative Decisions Tribunal (the Tribunal) at first instance is an appealable decision, the appeal ‘must be made … within 28 days after the Tribunal furnishes the party with written reasons’: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113(3)(a). The Tribunal’s decision in BE v University of Technology, Sydney [2008] NSWADT 139, delivered on 14 May 2008, is appealable. BE lodged an appeal on 24 November 2008. An appeal may only proceed out of time with the leave of the Appeal Panel: s 113(3)(b). The respondent, UTS, opposes the grant of leave.

2 The Appeal Panel may be constituted for the purpose of making a decision in respect of an interlocutory function by one presidential judicial member who is assigned by the President for the purpose of exercising the function: s 24A(2)(a). The decision whether to allow an appeal to proceed out of time involves the exercise of an ‘interlocutory function’ of the Tribunal (see s 22A(1)(d)). Accordingly, the Panel is constituted for this purpose by the President sitting alone.

Background

3 BE’s husband, EN, was a member of the academic staff of UTS from about 1993 to 2008, holding appointment as Lecturer in the Faculty of Business. She has been making representations to UTS now for many years over the way UTS has dealt with her husband.

4 EN enrolled for a Ph D on 31 August 1997. His candidature was the subject of a recommendation for termination in 2000 which he successfully appealed. He withdrew his candidature on 17 December 2006. In or about 2002 he was unsuccessful in an application for promotion to Senior Lecturer. On 15 May 2008 he resigned from his position after a period of sick leave and long service leave. At the time of his resignation he was pursuing a workers’ compensation claim against UTS alleging workplace harassment, and arguing that he had been constructively dismissed.

5 One set of representations made by BE related to the way UTS had dealt with her husband’s Ph D candidature. In April 2007, and arising out of those representations, BE complained that UTS had breached the Privacy and Personal Information Protection Act 1998 (PPIPA) and the Health Records and Information Privacy Act 2002 in relation to personal information it held about her. The personal information was said to be found in correspondence that had passed between her and the Chancellor of the University, and in references made to that correspondence in other documents. UTS rejected her complaint.

6 She applied to the Tribunal for review of the conduct. The Tribunal rejected her case, and decided, in terms of s 55(2) of PPIPA, that no further action be taken on the complaint.

7 A comprehensive account of the background circumstances and the specific complaints made by BE is set out in the Tribunal’s decision. In addition, further detail is to be found in a more recent decision relating to an application for review of conduct brought by EN, where BE is the agent acting on his behalf: EN v University of Technology, Sydney [2009] NSWADT 50 (5 March 2009).

The Leave Discretion

8 There are many Tribunal cases setting out the considerations seen as relevant to the exercise of the discretion to grant leave to appeal. See for example Lupevo Pty Ltd t/a Ampol Nabiac v Bree [2002] NSWADTAP 9 at [6]; Ministry of Transport v Kharbanda (GD) [2006] NSWADTAP 61; and NZ v Commissioner of Police, New South Wales Police (GD) [2008] NSWADTAP 23.

9 The following considerations are among those that have been seen as relevant to the exercise of the leave discretion:

- The reason for the failure to lodge the appeal.

- The extent of the appellant’s knowledge of the relevant statutory provisions.

- The adequacy of the information conveyed to the appellant at the time the decision was notified to him or her, both as to the reasons for decision and of the appellant’s entitlement to appeal.

- The length of the delay in lodging the appeal.

- The diligence shown by the appellant in lodging the appeal after it came to his or her notice that there were circumstances justifying an appeal.

- The nature of the decision below and the consequences of the decision upon the appellant’s rights.

- The possible prejudice to the respondent to the appeal.

10 Not all of the above considerations are relevant to the present application.

11 As I noted in NZ:

‘In considering whether to grant leave to appeal out of time, the governing consideration is the interests of justice in the circumstances. Time lines are a usual feature of any organised system of administration, including the administration of justice. The party who secures a positive order at first instance should be able to expect, once the appeal period has passed, that the order is now final and not contestable. Sometimes there may be good reasons why the unsuccessful party did not file an appeal in time, and now seeks leave to have the appeal accepted out of time.

The party seeking leave should have a cogent explanation for failing to meet the time lines. If there is a cogent explanation, it is necessary to consider the prejudice that might be suffered by the successful party in reopening the matter. If the successful party has taken steps based on the decision, it may well be that it would be unfair on that basis alone to reopen the decision. Further, there is the issue of whether allowing the appeal to proceed would waste the (limited) resources of the Tribunal and be burdensome to the respondent because the appeal grounds are so weak that there are little or no prospects of the appeal being successful.’

12 BE’s principal explanation for her delay in lodging this appeal in time is medical. She said that she succumbed to stress in the period 15 May to 24 November 2008 as a result of the efforts she had made on her husband’s behalf in the years prior to his resignation and as a result of the impact on their circumstances of his loss of income.

13 She tendered two certificates. The first was from Dr Omparkash Gupta, general practitioner, undated, as follows:

‘MEDICAL CERTIFICATE

This is to certify that I examined [BE] on 26 Sep 2008

In my opinion she was / is suffering from a medical condition:

SEVERE STRESS AND ANXIETY STATE WITH PANIC

[BE] will be unfit for work up to and including: [not completed]’

14 The second medical certificate is fuller. It was from Dr Christina Salter, consultant psychiatrist, dated 28 January 2009.

‘STRICTLY PRIVATE & CONFIDENTIAL

The Registrar

Administrative Decisions Tribunal

Re: [BE]

[BE] was very unwell in May 2008.

She has been suffering from an anxiety state in relation to her husband’s longstanding major depressive illness and the various stressors this imposed on her. This included not only coping with her husband’s illness, and the prospect of his failure to recover but also being forced to assume all of the responsibilities which were previously his, but additionally the extremely onerous task of dealing with the heavy burden of his ongoing negotiations with the various agencies involved with his disputes with UTS.

She was disabled by this illness at the time in May 2008 she was required to submit an appeal against the determination of BE versus UTS within the stipulated 28 day period to complete and lodge the appeal. She was unable to comply with these requirements because of her own ongoing illness.

Christina Salter

Consultant Psychiatrist’

15 I agree with the submissions for UTS that neither of these certificates provide sufficient information to warrant acceptance of the explanation. There is no clarity in these statements as to the extent of either practitioner’s contact with BE in the appeal period 15 May to 12 June 2008 (28 clear days). Nor, in my opinion, is there sufficient information to suggest a degree of incapacity in the next five months so great that it was only in November that she became capable of lodging the appeal.

16 I note from the file in EN (application lodged with the Tribunal on 30 January 2008) that BE actively participated in two planning meetings during the period in question. She appeared at a Tribunal planning meeting on 26 May 2008 where detailed directions were made for the further conduct of EN’s matter, and that she again appeared at a planning meeting on 21 October 2008 involving the making of further detailed directions.

17 BE referred in support of late acceptance of the appeal to the difficulties she faced as an unrepresented person in bringing a case in the Tribunal, and to the other actions being taken against UTS by her husband. She referred to complaints made to the Ombudsman, and her husband’s industrial claim alleging workplace bullying and harassment.

18 She referred to her involvement in the EN case. Towards the close of her submissions, she said she did not want the member hearing the EN case, who had also heard the present case, to feel she did not trust him. The Tribunal had in the EN case agreed to the issuance of the summons for production of documents by UTS at a planning meeting on 12 November 2008. The summons issued on 14 November 2008, and was returnable on 24 November 2008. BE appeared at the return of the summons on that day, the same day as the appeal in this case was lodged.

19 The level of continued involvement that BE had in the matters mentioned including the EN case do not bear out her suggestion that she was so incapacitated in the period May to November 2008 that she could not have lodged an appeal.

20 As I indicated to BE at hearing, I am not inclined to attach any great weight to the fact that a party seeking leave to file late is involved in a multiplicity of disputes with the respondent party. Once a party embarks on litigation it falls to that party to adhere to the rules that govern the litigation, regardless of how many other matters they may have on foot. There should not be a ‘bonus’ by way of a more lenient exercise of the leave discretion because of that circumstance given to those who engage in a multiplicity of proceedings. It is also not unusual in this Tribunal for parties to appear without representation. A number of the procedural standards to which the Tribunal is required to adhere by s 73 of the ADT Act are directed to equalising the balance for an unrepresented party. In my view, lack of representation should not ordinarily be given any significant weight in appraising an application for leave to appeal out of time in a tribunal context.

Prejudice

21 As the Tribunal’s reasons in this case and in EN reveal, the matters that BE and EN have sought to agitate involve many aspects of EN’s work and enrolment relationship with UTS over many years. The circumstances are quite complicated, and a large amount of material has been filed. There can be no doubt that the respondent agency, UTS, has incurred considerable time and expense in dealing with the claims made. As the Tribunal noted in its reasons in BE at [32]:

‘The factual matrix in this matter is a complex one, especially in view of the fact that much of the personal information relates to BE’s husband rather than BE and is not, therefore, the subject of this review except in so far as it is the background against which the relevant documentation must be considered.’

22 It is plain from the text of the notice of appeal that it is BE’s intention to re-agitate the entirety of the case she put to the Tribunal. She also makes numerous assertions criticising the way the Tribunal summarised the evidence for the purpose of providing a background account of the circumstances. At the leave hearing she made numerous extremely-worded criticisms of UTS, staff members and the legal team.

23 In my view it would impose great additional cost and expense on the respondent if it was called on to defend the present appeal. The appeal would be a burdensome one for this Tribunal, with the costs that flow to the public purse. The time limits imposed on appeals seek to provide an end point to litigation, and to enable the institutions affected, in this instance the respondent agency and the Tribunal, to close the files and move on. There have to be strong reasons to justify a grant of leave to allow to proceed a case of the present kind. In my view they have not been established.

Arguability

24 I will deal with this point which was canvassed in the submissions from both parties briefly, as my decision does not depend on it.

25 I will not recite in detail the Tribunal’s core reasoning. In my view, it was reasonably open to it to find as it did that the document that is said by BE to have recorded ‘personal information’ within the meaning of PPIPA about her did not record any ‘personal information’; and consequently, as UTS asserted, the complaint was outside jurisdiction. That document is the reply from the Chancellor of the time (Sir Gerard Brennan) to BE dated 30 March 2004 to oral and written representations in relation to EN’s treatment which BE regarded as personal, private and confidential. The reply reads:

‘Dear [BE]

I have had the documentation you provided to me under cover of your letter of 15 March, and the records of the University Graduate School, examined. When the Appeals Committee allowed [EN’s] appeal against termination of his candidature I understand that the normal process would have been for an unsuccessful Doctoral Assessment to be repeated. However, it appears that the Research Students Committee on 4 March 2003 endorsed Professor Tennant’s proposal that [EN] be allowed to continue “… without having to complete a doctoral assessment …”. Professor Tennant wrote to [EN] on 3 June 2003 noting that “… you will not be required to undertake another Doctoral Assessment, but that a Doctoral Assessment will be arranged upon your request.” Further “… Notwithstanding (the) the above, we advise you to undertake a Doctoral Assessment to provide you with feedback on your research”. The letter also contained details of proposed special supervisory arrangements (a Supervisory panel without a Principal Supervisor) and duration of candidature. The letter requested a signed acknowledgement but there appears to be no file record of this having occurred. As [EN] appears not to have accepted the special arrangements proposed and endorsed by the Research Students Committee, requirements for his ongoing candidature would revert to normal process.

Subsequent email correspondence (Tennant to Palmer, 6 July 2003; Palmer to Ta, 14 August 2003) indicates a reversion to standard practice occurred, namely appointment of a Principal Supervisor and a requirement of successful completion of a Doctoral Assessment.

In these circumstances I am advised that the current requirements are fully consistent with approved UTS Doctoral processes and practices.

I do not propose to take any further action.

There will be no point in further communication and I have instructed my personal assistant that any further correspondence from you is to be returned forthwith.”’

26 Further, in my view, the Tribunal’s conclusion in the alternative was also reasonably open to it. The Tribunal stated that, if contrary to its conclusion, the letter did record personal information about BE (i.e. that she had communicated privately with the Chancellor and that an opinion had been formed about her that she had made a complaint that was without substance), the references made to the contents of that letter and its subsequent circulation to certain members of the academic staff did not contravene PPIPA as that circulation was for a directly related purpose.

27 I have noted that in EN following issuance of a summons for the relevant records, the Tribunal corrected one part of the narrative it had given in BE. In its narrative relating to EN’s Ph D history, the Tribunal had said in EN, relying on a chronology supplied by UTS, that in the year 2000 a body which operates at stage two of a four stage decision-making and appeals hierarchy, the Graduate Students Committee of the Graduate School Board, had endorsed a recommendation from the first instance body (the Research Students Review Board) to terminate EN’s candidature. The summonsed documents revealed that the relevant official minutes show no reference to EN in the course of the meeting, and that accordingly the Committee did not endorse the termination of EN’s Ph D candidature. It may be that, as BE contends, EN was put to unnecessary further appeals (which were ultimately successful), as a result of an apparent misreporting of the outcome of that Committee’s deliberations in a memorandum to which the Tribunal refers, and which in turn formed part of the background to the reply given by the Chancellor.

Costs Application

28 UTS has applied for an award of costs. Following recent amendments, the operative provision as relevant to proceedings arising from review applications, as this is, is:

‘ 88 Costs

(1) Each party to proceedings before the Tribunal is to bear the party’s own costs in the proceedings, except as provided by this section.

(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or

(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or

(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or

(iv) causing an adjournment, or

(v) attempting to deceive another party or the Tribunal, or

(vi) vexatiously conducting the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) any other matter that the Tribunal considers relevant.

(2) The Tribunal may:

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.

(3) …

(4) In this section, costs includes:

(a) costs of or incidental to proceedings in the Tribunal, and

(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.’

29 In my view, the filing of an appeal well out of time provides a strong basis for a costs application. The party who has the benefit of an order should be entitled to assume that the matter is closed if an appeal is not filed within the usual time. While a late filing that involves only a few days and for which there is a reasonable explanation may not visit any great inconvenience on the opposite party, a delay of months or years will have that effect.

30 The Privacy legislation seeks to apply a due process framework to the practicalities that surround the collection and handling of regulated personal information by regulated agencies. It follows, in my view, that timeliness in the making of complaints and their despatch is important, and that consideration extends to the making of any appeals against decisions of the Tribunal.

31 In my view the appeal borders on the vexatious (see s 88 (1A), factor (a) (vi)). As I see it, the appellant is using the ‘hook’ of the letter from the Chancellor dated 30 March 2004, and its subsequent circulation in 2006 to those with an interest in its contents, to enable her to have a forum for a wide-ranging attack on UTS over the way it has dealt with her husband’s career circumstances.

32 In my view, it is fair to make an award of costs in favour of UTS for its costs in connection with the appeal.