CCM v Western Sydney University - [2016] NSWCATAD 234

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CCM v Western Sydney University [2016] NSWCATAD 234
Hearing dates: 14, 15 and 31 March 2016
Date of orders: 18 October 2016
Decision date: 18 October 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: Dr J Lucy, Senior Member
Decision:
(1) The respondent’s name is changed from University of Western Sydney to Western Sydney University.
(2) No action is to be taken on the matters raised by the applicant in proceedings 1510426 and 1510427.

Catchwords: PRIVACY – Scope of application to Tribunal – Whether conduct the subject of Tribunal application was also the subject of the internal review application – Some conduct not the subject of internal review application so beyond the scope of the Tribunal’s jurisdiction – Whether respondent unlawfully used or disclosed the applicant’s personal information – Applicant’s personal information emailed to others by or on behalf respondent’s employees in response to a third party’s proceedings under the Fair Work Act 2009 (Cth) – Employees responding to claim in their personal capacity for purpose extraneous to that of respondent –Conduct not attributable to respondent
Legislation Cited: Privacy and Personal Information Protection Act 1998 (NSW)
Fair Work Act 2009 (Cth)
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Administrative Decisions Review Act 1997 (NSW)
Western Sydney University Act 1997 (NSW)
Cases Cited: C.F. [2015] FWC 5272
Director General, Department of Education and Training v MT [2006] NSWCA 270
OD v Department of Education and Training [2005] NSWADTAP 74
Category: Principal judgment
Parties: CCM (Applicant)
Western Sydney University (Respondent)
Representation:
Counsel:
B Tronson (Respondent)
Solicitors:
CCM (Applicant in person)
Thomson Geer (Respondent)

File Number(s): 1510426 and 1510427
Publication restriction: It is prohibited to disclose the name of the applicant, except for the purposes of the proceedings or for the respondent’s reporting requirements. Access to the Tribunal files in this matter, other than by the parties to the proceedings and their legal representatives, is prohibited.

REASONS FOR DECISION

These proceedings concern the question of whether the respondent (“the University”) breached the applicant’s privacy under the Privacy and Personal Information Protection Act 1998 (NSW) (“PPIP Act”) through the sending of emails containing the applicant’s personal information.
I have found that some of the privacy complaints that the applicant made in her application to the Tribunal (including about the collection of her personal information by the University) were not contained in the applicant’s internal review application, and so are outside the scope of the Tribunal’s review. I have also found that the applicant’s complaints about the University’s use and disclosure of her personal information, which are within the scope of the review, cannot be sustained, because the relevant conduct was not engaged in for the University’s purposes, and is not attributable to the University.

Non-disclosure orders

Early in the proceedings, the Tribunal made orders, by consent, prohibiting the disclosure of the applicant’s name, except for the purposes of these proceedings or for the University’s reporting…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWCATAD 234
Decision Date: 18 October 2016

CaseChat Overview and Summary

In the matter of CCM versus Western Sydney University, the Federal Circuit and Family Court addressed an application concerning privacy and the misuse of personal information. The applicant, CCM, sought to have the respondent's use and disclosure of her personal information declared unlawful, claiming that it was communicated to third parties by employees in their personal capacity, outside the scope of their employment. The dispute centred on whether the university's employees had acted within the scope of their employment when they emailed the applicant's personal information to others in response to proceedings initiated under the Fair Work Act 2009 (Cth).

The court was required to determine whether the conduct in question fell within the scope of the Privacy Act 1988 (Cth) and whether the respondent could be held liable for the actions of its employees. This involved examining whether the employees' actions were attributable to the respondent when they communicated the personal information in response to the Fair Work Act proceedings. The court had to consider whether the employees were acting within the scope of their employment or in a personal capacity at the time of the disclosure.

The court found that the conduct of the employees was not attributable to the respondent because it occurred in a personal capacity, not within the scope of their employment. Consequently, the university could not be held liable for the actions of its employees in this instance. The court held that since the conduct was not the subject of the internal review application, it fell outside the scope of the Tribunal's jurisdiction. Therefore, the court dismissed the application and ordered that no action be taken on the matters raised in the proceedings.

The final orders included the amendment of the respondent's name from the University of Western Sydney to Western Sydney University and the dismissal of the application without any further action being taken on the matters raised in the proceedings.

Orders

Orders of the court

(1) The respondent’s name is changed from University of Western Sydney to Western Sydney University.

(2) No action is to be taken on the matters raised by the applicant in proceedings 1510426 and 1510427.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	CCM v Western Sydney University [2016] NSWCATAD 234
Hearing dates:	14, 15 and 31 March 2016
Date of orders:	18 October 2016
Decision date:	18 October 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member
Decision:	(1) The respondent’s name is changed from University of Western Sydney to Western Sydney University. (2) No action is to be taken on the matters raised by the applicant in proceedings 1510426 and 1510427.
Catchwords:	PRIVACY – Scope of application to Tribunal – Whether conduct the subject of Tribunal application was also the subject of the internal review application – Some conduct not the subject of internal review application so beyond the scope of the Tribunal’s jurisdiction – Whether respondent unlawfully used or disclosed the applicant’s personal information – Applicant’s personal information emailed to others by or on behalf respondent’s employees in response to a third party’s proceedings under the Fair Work Act 2009 (Cth) – Employees responding to claim in their personal capacity for purpose extraneous to that of respondent –Conduct not attributable to respondent
Legislation Cited:	Privacy and Personal Information Protection Act 1998 (NSW) Fair Work Act 2009 (Cth) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Administrative Decisions Review Act 1997 (NSW) Western Sydney University Act 1997 (NSW)
Cases Cited:	C.F. [2015] FWC 5272 Director General, Department of Education and Training v MT [2006] NSWCA 270 OD v Department of Education and Training [2005] NSWADTAP 74
Category:	Principal judgment
Parties:	CCM (Applicant) Western Sydney University (Respondent)
Representation:	Counsel: B Tronson (Respondent) Solicitors: CCM (Applicant in person) Thomson Geer (Respondent)
File Number(s):	1510426 and 1510427
Publication restriction:	It is prohibited to disclose the name of the applicant, except for the purposes of the proceedings or for the respondent’s reporting requirements. Access to the Tribunal files in this matter, other than by the parties to the proceedings and their legal representatives, is prohibited.