BTX v University of Wollongong

[2015] NSWCATAD 190

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BTX v University of Wollongong [2015] NSWCATAD 190
Hearing dates:	9 July 2015
Decision date:	18 September 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer Senior Member
Decision:	(1) The application is dismissed
Catchwords:	LEAVE to proceed out of time – reasonable time to lodge application – reasonable explanation for delay – leave refused – application dismissed – basis to consider merits as part of explanation for delay.
Legislation Cited:	Administrative Decisions Act 1997 Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Privacy and Personal Information Protection Act 1998
Cases Cited:	AT v Commissioner of Police, New South Wales Police [2011] NSWADT 214 Makita v Sprowles [2001] NSWCA 305 Turner v Commissioner of Police NSW Police Force [2014] NSWCATAP Habib v State of New South Wales (NSW Police Force) [2014] NSWCATAP 70
Texts Cited:	DSM (IV)
Category:	Principal judgment
Parties:	BTX (Applicant) University of Wollongong (Respondent)
Representation:	Counsel: N/A   Solicitors: Sparke Helmore Lawyers (Respondent)
File Number(s):	1510170
Publication restriction:	Section 64 (1) Civil and Administrative Tribunal Act 2013

Reasons for decision

1. The applicant in these proceedings is referred to as “BTX”. BTX is the applicant’s pseudonym used in these proceedings.

2. These proceedings arise from a privacy complaint by BTX against the university where he was a student. That complaint was dealt with by the University (respondent), by way of an internal review under the Privacy and Personal Information Protection Act 1998 (the PPIP Act). In that review the respondent examined whether the applicant’s allegations of breaches of privacy were established. The review findings were that no breaches occurred. As a result the applicant sought administrative review in the Tribunal.

3. For reasons set out below, the Tribunal declines to give leave to proceed out of time. In doing so, it was necessary to hear the application on the merits, mainly for reasons set out in paragraphs 12 and 33 (below). In doing so the Tribunal identified that in respect of disclosure, there was no breach of the Information Privacy Principles (IPP’s) under the PPIP Act in respect of the management of BTX’s personal information by the University. For that reason and other reasons in the application, leave to proceed out of time was subsequently refused.

Background

4. BTX filed their application for administrative review of the conduct of the Respondent on 20 March 2015. The initial privacy complaint was received by the respondent on 12 February 2013 and was treated as an Internal Review in accordance with Part 5 of the PPIP Act.

5. The circumstances of BTX’s privacy grievances can be summarised as follows :

1. A complaint that an academic provided BTX with incorrect information (about his mark / assessment result for a certain subject).

2. An allegation that an academic disclosed BTX’s personal information by sending documents by ordinary pre-paid post to a previous mailing address. The data allegedly disclosed constitute:

• Notice of Investigation letter

• BTX’s e-mail communications

• BTX’s correspondence

• BTX’s marks in relevant subjects

• BTX’s assessment

• Possible other material constituting personal information

Each of these grievances was received on 12 February 2013 as separate applications for internal review.

6. There was also an issue raised by BTX that the academic concerned with the two alleged privacy grievances, was not authorised to access and use BTX’s personal information, because that academic was not the subject co-ordinator of the subject / course in which the relevant data / personal information of BTX arose.

7. In addition, in September 2013 BTX claimed that he received a copy of the data referred to in grievance (2) (see paragraph 5 above) from a third party, and this information indicated that the information had been disclosed. However the respondent was not aware of this ‘matter arising’ until the matters were before the Tribunal.

8. The application for review was subsequently forwarded to the Tribunal in December 2014, but was returned as incomplete. The completed applications were eventually filed with the Tribunal on 20 March 2015.

History of matter before the Tribunal.

9. The application for administrative review is dated 8 December 2013. There is evidence to indicate that the Divisional Registry received the application on 15 December 2014, and e-mailed the applicant on 17 December 2014 to advise that the application was incomplete. At the end of the application form the applicant had written that he would be overseas from 13 December 2014 until the beginning of March 2015, and provided an e-mail address where contact could be made during that period. The e-mail from the Registry was sent to that address. The application was eventually date stamped by the Registry on 20 March 2015, presumably as the matters raised in the 15 December 2015 e-mail had been attended to by the applicant upon his return to Australia.

10. The matter was listed for a Planning Meeting on 28 April 2015, where the applicant was present and represented himself. The respondent was represented by Ms Perre who is the University’s Information Compliance Officer. An employee of the Information and Privacy Commissioner was also present and represented of the Privacy Commissioner in accordance with section 55 (6) of the PPIP Act, which gives the Privacy Commissioner the right to appear and be heard in any proceedings in the Tribunal brought under the PPIP Act. The Tribunal was assisted by an interpreter for BTX at that Planning Meeting and also at the hearing.

11. Whilst there was a reference to the advice provided by the University at the conclusion of the Internal Review, (namely the advice to go to the NSW Ombudsman), there was no specific issue raised with the application to the Tribunal being out of time. The advice concerning the NSW Ombudsman arose from a related grievance being the internal investigation and Appeals Committee decision to terminate BTX’s PhD candidature. It appears that in part, BTX’s privacy grievances and his appeals and processes against his own academic misconduct allegations, have become intertwined.

12. After the matter was set down for hearing, and the timetable had been set, the respondent filed a general application to strike the matter out, as in their view there was no reasonable explanation for the delay. As this matter had not been pressed by the respondent at the Planning Meeting in April, and due to the pending hearing of the substantive claim, I directed the parties to file and serve submissions on the strike out application, and advised that the matter would be dealt with on the day of the hearing.

The strike out application

13. On an analysis of the material dates it is clear that the application to the Tribunal (in respect of the privacy internal review) was out of time. Under the provisions existing at the time of BTX's open appeal period, the Administrative Decisions Act 1997 (the ADT Act), the law had developed on how long an applicant had to bring an internal review to the Tribunal for administrative review.

14. The relevant material dates fall within the provisions of the ADT Act, and concern how a matter would be brought to the previous Administrative Decisions Tribunal. There had been a range of views and amendments under the former provisions as to what constitutes the period in which an application can be brought. The following case clarifies the relevant period and applies the applicable test.

15. In the case of AT v Commissioner of Police, New South Wales Police [2011] NSWADT 214 which deals with the issue of the time to lodge an appeal under the ADT Act, then Deputy President Higgins in the Administrative Decisions Tribunal observed the following.

13. For the reasons set out below, I have found that the applicant did not lodge her application for external review within a reasonable time. I have also found that the applicant has failed to provide a reasonable explanation for her delay.

Applicable law

14. As I have already mentioned, in AT [2009], the Appeal Panel found that section 55 of the Privacy Act is to be read as requiring an application to be lodged within a 'reasonable time'.

15. Since the decision of the Appeal Panel, section 55 of the ADT Act has been amended (see clause 7 of Schedule 1 of the Administrative Decisions Tribunal Amendment Act 2008). The effect of this amendment appears to override the decision of the Appeal Panel as to when an application for external review is to be lodged. It is unnecessary for the Tribunal to make any finding in this regard as the applicable law, for this application, is the law as it applied when the applicant lodged her application with the Tribunal. So far as it is relevant, the applicable law is that set out by the Appeal Panel.

16. In calculating what is a reasonable time, at [36] and [37] in its decision the Appeal Panel said the following:

'36 [what] is a 'reasonable time'. This will, we think, depend on the circumstances of the case. But given that s 53(8) speaks of a notice been given of the right to apply to the Tribunal for a review in respect of the findings and the 'proposed' action, this would suggest that time should run from the time the applicant did, or should reasonably have, become aware of the notice.

37 In our view, using the guide provided by the FOI Act, 60 days should be regarded as the ordinary outer limit of a reasonable time. There may be extenuating circumstances which justify a longer time being allowed.

16. The amendments to section 55 of the ADT Act mean that where no time for bringing an application is specified, there is a default period which applies. That default period was provided for relevant purposes as 28 days from either the date of the decision or date of notification of the decision. On this analysis BTX’s application should have been received on or before Tuesday 30 April 2013.

17. The amended section 55 provided:

55 When can an application for a review be made?

(1) a person may apply to the Tribunal for a review of a reviewable decision only if:

(d) the application is made within the period or by the time prescribed by or under the enactment under which the application is made or, if no such period or time is prescribed, the default application period for the decision.

(2) The default application period for a reviewable decision is:

(a) in the case where the applicant has duly applied for an internal review of the reviewable decision—the period of 28 days after the day on which the internal review is taken to have been finalised under section 53 (9), or

(3) Despite subsections (1) (b) and (d) and (2), the Tribunal may deal with an application for the review of a reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that:

(a) the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the reviewable decision of the administrator concerned, or

(b) it is necessary for the Tribunal to deal with the application in order to protect the applicant’s interests and the application to the Tribunal was made within a reasonable time following the reviewable decision of the administrator concerned.

(4) In determining whether a late application for internal review was unreasonably refused or whether an application to the Tribunal was made within a reasonable time for the purposes of subsection (3), the Tribunal is to have regard to:

(a) the time when the applicant became aware of the making of the decision,

and

(b) in a case to which subsection (3) (a) applies—the period prescribed by or under section 53 for the lodging of an application for an internal review, and

(c) such other matters as it considers relevant.

18. Section 57 of the ADT Act provided for the Tribunal to extend the time (beyond the default period) for an applicant to make an application to the Tribunal, if the Tribunal was of the opinion that the applicant had provided a reasonable explanation for the delay in making the application.

19. The decision in AT went on to consider whether the applicant had provided a reasonable explanation for the delay. At paragraph 34 the following is stated.

34. In my view it is unnecessary for me to make any finding in this regard as even on the basis that the section does apply, in my view the applicant has failed to provide a reasonable explanation for her more than 12 month delay (i.e. from May 2006 to June 2007) in lodging her application for external review. As I have indicated, the applicant's evidence is that during this period she forgot about the sexual assault and what had happened with the NSW Police. She said her state of mind also improved during this period. I am not at all critical of the applicant's evidence or the approach she took. The difficulty I have with her evidence is that it does not provide a reasonable explanation for her 12 month delay in lodging her application for external review. Forgetting about her right to seek external review cannot of itself be a reasonable explanation for the delay. Nor is there any evidence of her having any further psychotic events, further hospitalisation, or any other condition, which prevented her from seeking advice much earlier about her right to seek external review.

35. On the basis of my findings that the applicant failed to lodge her application for external review within a reasonable time and that I am not satisfied that the applicant has provided a reasonable explanation for her delay in lodging her application. On the basis of these findings, the appropriate order is that the application is dismissed.

The Respondent’s grounds

20. The respondent in written submissions filed 25 June 2015 made the following arguments as to why the Tribunal should not extend time, and should as a result dismiss the application.

• The application was filed nearly 2 years after the time required for filing under the (then) ADT Act.

• The applicant has failed to provide a reasonable explanation for the delay for the purposes of section 57 of the ADT Act. The reasons being that: (a) he needed to concentrate on his studies, (b) being too busy, (c ) medical issues affecting BTX and his spouse.

• The respondent argued that as BTX was capable of lodging an academic appeal with the University in regards to the termination of his PhD candidature in mid April 2014, he would have been capable of lodging an administrative review application with the Tribunal.

• The respondent highlighted the absence of medical evidence which covered significant periods of the approximate two years of delay. Further the respondent submitted that when medical evidence / material was provided it either did not establish how that evidence impeded the exercising of specific legal rights and remedies, and / or where it did provide some basis for a delay (current to the medical issue) the evidence was silent on the subsequent lengthy periods of delay.

21. The respondent provided oral submissions at the hearing which amplified their written submissions. They submitted that the applicant included references to the privacy complaints in the April 2014 academic appeal processes and associated documentation. The respondent submitted that taken at its highest, the medical evidence could establish a basis for delay covering the period October 2013 to January 2014 (inclusive).

22. On the basis of an analysis of the factual material submitted by the applicant, the respondent surmised that the reason for the delay was not that the applicant was incapacitated or unable due to carer’s or family responsibilities to pursue a review, but rather that it was because he chose not to, and only returned to the privacy grievances after his PhD candidacy was terminated in November 2014. The applicant ultimately did provide an argument aligned to matters relating to his PhD candidature as a reason for his delay.

23. The respondent submitted that because the termination of the applicant’s PhD candidature was unrelated to the privacy application, this does not equate to a reasonable explanation for the delay.

24. The respondent also submitted that they had been prejudiced by the delay, in that as a result they had limited ability to obtain contemporaneous recollections concerning the merits claim, or to test the medical evidence provided in respect of the delay.

The Applicant’s grounds.

25. The applicant submitted in written submissions dated 9 June 2015 that he only provided minimal information concerning the delay when filing, due to the structure of the application form.

26. The applicant’s main argument was that as he was an international student, with a restrictive visa, his primary concern was to focus on his studies in order to successfully progress and as a result maintain a lawful basis for his being in Australia, so as to not offend the terms of his student visa. This caused the applicant to be under time and resource pressure which in his view did not allow him the time or ability to do anything that would affect his academic performance. (It appears that this argument by extension means that due to the pressing concerns of maintaining his visa conditions, all other matters – including an application for administrative or external review in 2013, of a privacy grievance, were afforded a lower priority).

27. Significant submissions are made on medical and family matters during 2013 and early 2014 as being the basis for the delay in lodging the application for review.

28. The applicant submitted that he received the termination notice in late March early April 2014. The various stages of these appeals took some seven months. Attachment 9 of the submissions is a copy of correspondence from the University dated 24 September 2014 relating to the academic appeal. The correspondence makes reference to privacy issues / concerns.

During your appeal you raised concerns regarding privacy issues at an earlier stage of the process. I should advise you that the Council Committee of Appeal is not empowered to investigate allegations relating to potential breaches of privacy, or on nay matters pertaining to the process other than the actions of the HDR Appeals Committee.

29. The other attachments provide some evidence of periods of incapacitation due to medical issues, carers responsibilities for the applicant’s spouse, and general references by General Practitioners and treating psychologists and counsellors to various conditions which can be characterised as conditions or disorders of the mind (as referred to in the DSM IV). However whilst the certificates provide some insight into conditions and treatment, in my view, (having regard to the principals set out in Makita v Sprowles [2001] NSWCA 305), they are insufficient to establish both the presence of, (through a formal diagnosis by a suitably qualified person) and the disabling effect of any such condition. The relevant evidence is provided by a General Practitioner, and treatment by a Psychologist. However, no diagnosis by a clinical psychologist or psychiatrist was provided.

Consideration.

30. I have already referred to some of the cases which deal with a consideration of what constitutes a reasonable explanation for delay. (See discussion concerning ‘AT’ above).

31. In the case of Turner v Commissioner of Police NSW Police Force [2014] NSWCATAP on appeal the Tribunal considered whether the applicant had provided a reasonable excuse for the delay. Whilst the governing legislation in that case used the term ‘reasonable excuse’ the Tribunal addresses the issue of the similarity between the terms ‘reasonable excuse’ and ‘reasonable explanation’. I am satisfied that the grounds relied on in that case are sufficient to encapsulate the basis of what constitutes a reasonable explanation for the delay.

30. The case refers to the correct approach when considering what the Tribunal is required to consider. At paragraph 17 the following is provided:

"57 Late applications to Tribunal

(1) Despite section 55 (1) (d), the Tribunal may, on application by an interested person seeking to make a late application to the Tribunal, extend the time for the making by that person of an application if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application.

Because providing a "reasonable explanation" or a 'reasonable excuse" is all that the Tribunal has to form an opinion about, other considerations such as the merits of the application for review, any prejudice to either party or the public interest are not relevant. The Tribunal made an error of law by taking these other matters into account in reaching its decision.

The appropriate course is to grant leave to extend the appeal to the merits of the Tribunal's decision: ADT Act, s 113(2). The other option would have been to remit the matter to the Tribunal for further determination. It is quicker and more efficient to determine the issue myself. The only prejudice to Mr Turner of not remitting the matter is that he will be denied the opportunity to appeal to the Appeal Panel against a further decision of the Tribunal. While that is arguably a disadvantage to him, avoiding further delay outweighs that consideration. The question for me to determine is whether Mr Turner has provided a "reasonable excuse for the delay".

33. The matters expressed above in Turner are in my view pertinent because in the current matter, the applicant raised an issue relating to the merits of his privacy grievance. That being, that he had been allegedly contacted by a third party who claimed to have received the applicant’s personal information as mailed by the University, and therefore that constituted a breach of an IPP. Importantly this issue was not raised at the time of the Internal Review as the applicant had not been made aware of that matter.

34. During the substantive hearing the applicant gave evidence that he received a telephone call from an unknown male person, who spoke in the applicant’s own Arabic dialect. The applicant’s evidence was that this confirmed that the correspondence which the respondent had directed to an out of date postal address was ‘disclosed’ in accordance with the terms and meaning of section 18 of the PPIP Act. The applicant proffered an Express Post envelope which he said was the one handed to him by the Arabic speaking male who had contacted him by telephone.

35. Whilst the envelope was shown to the Tribunal (and a copy attached to written submissions dated 3 July 2015), it was not put to the Respondent’s witness that this was the same envelope as the one sent by the University. It was however clear that it was addressed to the postal address which was out of date as at 22 October 2012.

36. The applicant did not produce any witness to give evidence that they had received the envelope. In addition, whilst the envelope was marked with the previous address, it was personally addressed to the applicant. In cross examination it was put to the applicant that he had in fact received the 22 October 2012 letter by way of mail re-direction which was in place. In evidence he initially answered yes, then advised that he did not understand. Later he advised that there was no mail re-direction in place at the relevant time.

37. The reasons that the applicant gave for not raising this development earlier, was that he had physical issues at the time and kept quite because of health issues and holidays.

38. He gave evidence that he did not raise this matter because he did not want to compromise his academic situation with the University.

39. In the case of Habib v State of New South Wales (NSW Police Force) [2014] NSWCATAP 70 the appeal panel looked at the issue of whether a matter untried and untested constituted as reasonable explanation. At paragraph 38:

In the context of the matter so far, I do not consider that the material before me, as untested and untestable as it is, constitutes a reasonable explanation for the failure of the Appellant or his representative to appear on the 19th of February.

40. In my view the manner in which this evidence was presented by the applicant meant that it was ultimately not able to be adequately tested at hearing.

41. In respect of the other matters in the substantive hearing the major issue related to the alleged disclosure of incorrect personal information by the respondents employee during e-mail communications with the applicant, and the use of the out of date postal address concerning the letter as discussed above.

42. In my view, whilst the applicant has given a number of reasons for the delay in lodging his application for review, having regard to the evidence and submissions of the applicant, as well as the matters referred to in the case of ‘AT’, I am not persuaded that the applicant has provided a reasonable explanation for the delay. Whilst the matter of the applicant’s studies may have been relevant to important conditions of his visa, no evidence was provided to verify the terms or conditions of any visa that the applicant was subject to at the relevant time.

43. In addition there are significant gaps in the applicant’s evidence upon which he relies concerning his periods of incapacity when it comes to being able to proceed with an application for review to the Tribunal.

44. It follows that I find that the applicant has failed to lodge his application for external review within a reasonable time, and he has failed to provide a reasonable explanation for the delay.

45. On the basis of my finding that the applicant failed to lodge his application for external review within a reasonable time and I am not satisfied that the applicant has provided a reasonable explanation for his delay in lodging his application, on the basis of these findings, the appropriate order is that the application is dismissed.

46. The application to dismiss the claim as being out of time is granted.

47. The applicant’s claim is therefore 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

Decision last updated: 18 September 2015