Eje v Charles Sturt University

[2021] NSWCATAD 190

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EJE v Charles Sturt University [2021] NSWCATAD 190

Hearing dates:

30 April 2021

Date of orders:

07 July 2021

Decision date:

07 July 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Ludlow, Senior Member

Decision:

(1) Items 2-3, 5-10, 12-15, 17-19, 21-26 and 28-31 inclusive contained in the application filed 22 December 2020 are dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013.

(2) The proceedings are referred to the Registry to be listed for a further case conference.

Catchwords:

ADMINISTRATIVE LAW — privacy — whether application within scope of internal review — accuracy of personal information

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — misconceived and lacking in substance

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:

203 Castlereagh Street Pty Limited v Skybloo Holdings Pty Limited [2017] NSWCATAP 29

Alchin v Rail Corporation NSW [2012] NSWADT 142

Brodyn Pty Ltd v Owners Corporation – Strata Plan 73019 (No 2) [2016] NSWCATAP 224

Department of Education and Training v GA (No.3) [2004] NSWADTAP 50

FM v Vice Chancellor, Macquarie University [2003] NSWADT 78

KO and KP v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 56

State Electricity Commission of Victoria v Rabel [1998] 1 VR 102

VZ v University of Newcastle [2011] NSWADT 245

WL v Randwick City Council (GD) [2007] NSWADTAP 58

ZR v Department of Education and Training (GD) [2010] NSWADTAP 75

Texts Cited:

None cited

Category:

Procedural rulings

Parties:

EJE (Applicant)
Charles Sturt University (Respondent)

Representation:

Solicitors:
Applicant (self-represented)
Thompson Cooper Lawyers (Respondent)

File Number(s):

2020/00363164

Publication restriction:

The publication of the name of the applicant is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

REASONS FOR DECISION

Background

1. This is an application by the respondent for an order dismissing these proceedings under s 55(1) of the Civil and Administrative Tribunal Act 2013 (the CAT Act) and an order for costs.

2. The applicant has made 31 complaints under the Privacy and Personal Information Protection Act 1998 (the PPIP Act) to the respondent and is dissatisfied with the action taken on internal review. She says that certain events where she noticed that the University held erroneous information about her, including her legal name, the courses she was enrolled in and details concerning a trip to Japan, led her to believe that someone was assuming her identity and corresponding with the University using her name. She also alleged that her intellectual property was being used by the University without permission. She was concerned about the security of her personal information held by the University.

3. The respondent has applied:

1. For the application to be dismissed in whole or in part under s 55(1)(b) of the CAT Act;

2. For the applicant to pay the respondent’s costs of the proceedings under s 60(2) of the CAT Act; and

3. Such further or other order as the Tribunal sees fit.

4. The University submits that the applicant’s application to the Tribunal is “frivolous or vexatious or otherwise misconceived or lacking in substance” on the basis that the instances of conduct identified by the applicant fall into one or more of the following categories:

1. Matters which were not subject to the internal review and therefore the Tribunal lacks jurisdiction to deal with them. In addition three of these are said to be for a collateral purpose and therefore vexatious;

2. Matters to which the University has appropriately responded and the Tribunal would not require the University to take any further action were the matter to proceed to hearing;

3. Matters where there is no ground for alleging that an Information Protection Principle (IPP) has been breached by the University.

5. The applicant disputes this interpretation and wishes her complaints to proceed.

6. In considering the application I have taken into account:

1. The application filed by EJE on 22 December 2020 seeking review of the University’s conduct under the PPIP Act;

2. Application for miscellaneous matters filed by the University on 11 March 2021;

3. University’s submissions filed 11 March 2021;

4. University’s bundle of documents filed 11 March 2021;

5. Material filed by EJE on 23 February 2021;

6. Material filed by EJE on 29 March 2021;

7. Respondent’s submissions in reply filed 13 April 2021;

8. Oral submissions by both parties made at the hearing.

Relevant legislation

7. Section 55 of the CAT Act 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.

(2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1)(c) if the Tribunal considers that there is a reasonable explanation for that failure.

8. Section 11 of the PPIP Act provides:

11 Other requirements relating to collection of personal information

If a public sector agency collects personal information from an individual, the agency must take such steps as are reasonable in the circumstances (having regard to the purposes for which the information is collected) to ensure that—

(a) the information collected is relevant to that purpose, is not excessive, and is accurate, up to date and complete, and

(b) the collection of the information does not intrude to an unreasonable extent on the personal affairs of the individual to whom the information relates.

9. Section 16 provides:

16 Agency must check accuracy of personal information before use

A public sector agency that holds personal information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.

10. Section 53 of the PPIP Act 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.

(4) Except as provided by section 54 (3), the application must be dealt with by an individual within the public sector agency who is directed by the agency to deal with the application. That individual must be, as far as is practicable, a person—

(a) who was not substantially involved in any matter relating to the conduct the subject of the application, and

(b) who is an employee or officer of the agency, and

(c) who is otherwise suitably qualified to deal with the matters raised by the application.

(5) In reviewing the conduct the subject of the application, the individual dealing with the application must consider any relevant material submitted by—

(a) the applicant, and

(b) the Privacy Commissioner.

(6) The review must be completed as soon as is reasonably practicable in the circumstances. However, if 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.

(7) Following the completion of the review, the public sector agency whose conduct was the subject of the application may do any one or more of the following—

(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.

(7A) A public sector agency may not pay monetary compensation under subsection (7) if—

(a) the applicant is a convicted inmate or former convicted inmate or a spouse, partner (whether of the same or the opposite sex), relative, friend or an associate of a convicted inmate or former convicted inmate, and

(b) the application relates to conduct of a public sector agency in relation to the convicted inmate or former convicted inmate, and

(c) the conduct occurred while the convicted inmate or former convicted inmate was a convicted inmate, or relates to any period during which the convicted inmate or former convicted inmate was a convicted inmate.

(8) As soon as practicable (or in any event within 14 days) after the completion of the review, the public sector agency must notify the applicant in writing of—

(a) the findings of the review (and the reasons for those findings), and

(b) the action proposed to be taken by the agency (and the reasons for taking that action), and

(c) the right of the person to have those findings, and the agency’s proposed action, administratively reviewed by the Tribunal.

11. Section 52(1) clarifies that “conduct” refers to:

(a) the contravention by a public sector agency of an information protection principle that applies to the agency,

(b) the contravention by a public sector agency of a privacy code of practice that applies to the agency,

(c) the disclosure by a public sector agency of personal information kept in a public register.

12. Section 55 provides that if a person who has made an application for internal review under section 53 is not satisfied with the findings of the review, or the action taken by the public sector agency in relation to the application, they may apply to this Tribunal for an administrative review of the conduct which was the subject of the internal review under the Administrative Decisions Review Act 1997.

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.

(1A) A person (the applicant) who is aggrieved by the conduct of a Minister (or a Minister’s personal staff) constituting a contravention of section 15 (Alteration of personal information) may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct.

(2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders—

(a) subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct,

(b) an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice,

(c) an order requiring the performance of an information protection principle or a privacy code of practice,

(d) an order requiring personal information that has been disclosed to be corrected by the public sector agency,

(e) an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant,

(f) an order requiring the public sector agency not to disclose personal information contained in a public register,

(g) such ancillary orders as the Tribunal thinks appropriate.

(3) Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997.

(4) The Tribunal may make an order under subsection (2) (a) only if—

(a) the application relates to conduct that occurs after the end of the 12 month period following the date on which Division 1 of Part 2 commences, and

(b) the Tribunal is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency.

(4A) The Tribunal may not make an order under subsection (2) (a) if—

(a) the applicant is a convicted inmate or former convicted inmate or a spouse, partner (whether of the same or the opposite sex), relative, friend or an associate of a convicted inmate or former convicted inmate, and

(b) the application relates to conduct of a public sector agency in relation to the convicted inmate or former convicted inmate, and

(c) the conduct occurred while the convicted inmate or former convicted inmate was a convicted inmate, or relates to any period during which the convicted inmate or former convicted inmate was a convicted inmate.

(5) If, in the course of an administrative review, the Tribunal is of the opinion that the chief executive officer or an employee of the public sector agency concerned has failed to exercise in good faith a function conferred or imposed on the officer or employee by or under this Act (including by or under a privacy code of practice), the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister (if any) for the public sector agency.

(6) The Privacy Commissioner is to be notified by the Tribunal of any application for an administrative review. The Privacy Commissioner has a right to appear and be heard in any proceedings before the Tribunal in relation to an administrative review.

(7) The Information Commissioner is to be notified by the Tribunal of any application for a review under this section that concerns the provision of government information by an agency (within the meaning of the Government Information (Public Access) Act 2009). The Information Commissioner has a right to appear and be heard in any proceedings before the Tribunal in relation to such a review.”

Background to the application

13. The following background facts are not in dispute unless stated otherwise.

14. On 21 October 2020, the University Ombudsman emailed EJE referring to her previous application under the Government Information (Public Access) Act 2009 (the GIPA Act) and the University’s intention to undertake an internal review of her complaints under the PPIP Act. The email stated:

“I confirm that you have agreed to provide me with a table or bullet point summary of the information that you believe is inaccurate, misleading or a represent a breach of privacy [sic]… For the avoidance of doubt, the only matter that the University is now looking into is your request for an internal review under section 53 of the Privacy and Personal Information Protection Act 1998. Please let me know if there are any other matters that you believe the University should be looking into.”

15. On 23 October 2020 EJE emailed the University Ombudsman as follows:

“Please see attached document addressing issues with documentation and how my privacy has been breached under section 16 of the PPIPA.”

16. The attached document (which is also attached to EJE’s application in this Tribunal) listed a number of issues relating to information in documents.

17. On 18 December 2020 the University issued a decision on the internal review. The notice of decision set out the findings, reasoning and actions taken by the University in respect of each of the 31 issues in a schedule. I note that EJE claims that the internal review did not consider all the matters she wished to have considered.

18. On 22 December 2020 EJE filed the application commencing these proceedings. On 1 February 2021 the solicitors for the University wrote to EJE asking her to identify which of the 31 instances she was dissatisfied with and what action she would be seeking. It also asked her to identify what acts or omissions of the University she relied on as “conduct” of the University and what provisions of the PPIP Act were breached.

19. EJE responded in writing in an undated document. This document set out extracts from relevant legislation and listed numbered complaints 1 to 6. These complaints, to my mind, do not have any apparent connection to the instances in the internal review schedule, although they are of a similar nature as they relate to the recording of her name in University records and other information about her held by the University. She also responded to the findings of the internal review.

20. Following correspondence between the two parties, the University filed the application to dismiss the proceedings on 11 March 2021. There are a number of grounds on which the University claims the proceedings should be dismissed.

Matters raised by the applicant are not within the scope of the internal review

21. Parts of EJE’s responses in correspondence with the University and in her submissions filed with the Tribunal raised issues not raised in the original 23 October 2020 document. For example, in relation to item 6 in the schedule, which originally concerned variations in the recording of her name in relation to a University trip to India, she additionally raises allegations that the University stole art and photography from her Instagram page and gave them to an identity thief to use unlawfully.

22. In KO and KP v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 56 (KO) at [14] it was held that:

“The question of what is the scope of the application, reasonably construed, is one of fact… The key question is what facts and circumstances has the applicant referred to which might give rise to questions of compliance with the Information Protection Principles, and to identify the relevant Principles”.

23. The Tribunal has jurisdiction under s 55(1) of the PPIP Act to review the conduct that was the subject of an application made under s 53.

24. The scope of the “conduct” must be determined using the applicant’s description of the conduct in their review request, including any attachments to their application, any subsequent clarifying correspondence or discussions, and any description by the applicant of what the ‘contraventions’ might be (Department of Education and Training v GA (No.3) [2004] NSWADTAP 50 (GA); see also VZ v University of Newcastle [2011] NSWADT 245 at [17]).

25. The Tribunal does not have jurisdiction to review conduct that was not the subject of the internal review application: see GA at [7] and ZR v Department of Education and Training(GD) [2010] NSWADTAP 75 at [17].

26. In KO at [13]‑[14], the Appeal Panel said:

“…in our view, it is clear from the scheme of the Act, in particular ss 53 and 55, that the scope of the application for internal review, reasonably construed, provides the scope for the agency's examination of the application. Unless there is some widening of the application within the process which is accepted by the agency, the application for internal review, reasonably construed, sets the scope for the application for review of the conduct by the Tribunal…”

27. In these proceedings, the University submitted that the application to the Tribunal complains about matters which were not subject to the internal review and refers to “sub-complaints” which are outside the scope of the internal review.

28. I had some difficulty following this aspect of the University’s submissions as it claimed some numbered “sub-complaints” referred to did not come within the internal review although they had appeared in the schedule. I note that EJE’s application to the Tribunal annexes the internal review decision of the University dated 18 December 2020 with the schedule of 31 instances and seeks an order that the University “stop any conduct or action that contravenes an information protection principle or privacy principle” and “correct personal information that has been disclosed or recorded inaccurately.” Her application is based on the 31 instances, therefore, and refers to disclosure of personal information and inaccurate recording of information. These mainly relate to alleged inaccurate recording of personal information by the University, although one suggests that information she provided to the University about her son had been copied. In an email of 23 October 2020 she also claims that “unknown persons were logging into my student portal and changing my password.”

29. The scope of the application for internal review sets the scope of the proceedings before the Tribunal. The documentation shows that EJE identified the 31 instances in response to the University Ombudsman’s request for a summary so the University could perform an internal review. They also formed the basis of that internal review. Therefore those instances of conduct are the subject of that internal review.

30. EJE submitted to this Tribunal that she had clearly identified the matters which were the subject of her internal review application, but that much of what she asked for was not addressed in the internal review. In her submissions filed on 29 March 2021 she identified a further instance beyond the 31 in the schedule which she said should also have been included. This concerned a document stating she was enrolled in the TAFE at Wangaratta. This matter was not listed in the 23 October 2020 document however, and in her submissions she states it was raised by her on 18 February 2021, well after she filed her application. I have not included it in the matters for review.

31. EJE referred to a number of examples of alleged conduct which suggested to her that someone at the University had stolen or was attempting to steal her identity. Her name was wrongly identified in University documentation and she alleged that her password was changed. She had approached the University on 20 October 2019 and asked them to take steps to correct their records.

32. Having considered all the material, I conclude that EJE’s application to the Tribunal does not itself introduce any new material. It is true that the parties have exchanged correspondence in which EJE has sought to provide additional instances of alleged conduct which were not listed in the document of 23 October 2020; and EJE has also sought to raise additional matters in material filed on 23 February and 29 March 2021 and at the hearing. As no application to amend the application has been granted, those additional matters are not within the application. They are not further particulars of the application; they allege new matters. In my view it is not compatible with the Tribunal’s stated purpose to “facilitate the just, quick and cheap resolution of the real issues in the proceedings” (s 36(1) of the CAT Act) for these matters to form part of the application.

33. This does not lead to a conclusion that the entire proceedings should be dismissed, however, when the application itself is within the scope of the internal review. It is preferable that the Tribunal have no regard to the additional material and focus on the application as it was filed. The applicant may still provide further particulars of that application if required. There is no need to consider whether any of the additional “sub-complaints” referred to above are vexatious.

34. It is not practical or fair, in my view, to make an order striking out particular documents filed by the applicant as they are a mixture of admissible and inadmissible material. If the matter proceeds to hearing, however, regard should only be had to matters which are itemised in the document of 23 October 2020.

Matters to which the University has already responded appropriately and the Tribunal would not make any further order

35. The University submitted that where there have been matters which could conceivably have breached one or more of the IPPs, it has dealt with those promptly and adequately. It submits that the application is frivolous in such cases and the Tribunal could not grant any further relief to the applicant.

36. For example in the case of item 15, this erroneously records that EJE completed year 12 at her high school. The University accepts this is an error and breach of s 11 of the PPIP Act and has corrected the record. EJE however maintains the document contains another error which the University does not accept as such.

37. This part of the application to dismiss is premature in my view. It requires the Tribunal to review the conduct and whether any breach has been established, and then make a determination under s 55(2). It is not a matter which should be determined in an interlocutory application for dismissal.

Matters where there is no ground for alleging that an Information Protection Principle (IPP) has been breached by the University

38. The University submits that a large number of the matters are innocent and could not reasonably be viewed as a potential breach of any IPP. These fall into several sub-categories.

39. As noted above, under s 55 the applicant may seek administrative review of “conduct” of the University which was the subject of the internal review. The type of conduct which is reviewable is set out in s 52(1):

(a) the contravention by a public sector agency of an information protection principle that applies to the agency,

(b) the contravention by a public sector agency of a privacy code of practice that applies to the agency,

(c) the disclosure by a public sector agency of personal information kept in a public register.

40. For each of the items in the schedule, EJE routinely claims IPPs 1, 2, 3, 4, 5, 6, 7, 9, 10, 11 and 12 were breached without addressing how each of these IPPs apply to the conduct in question. In considering the items below, I have considered whether they could constitute such conduct.

Matters which are misconceived as they arise from a misunderstanding by the applicant

41. The Tribunal may dismiss proceedings before it if it considers that the proceedings are misconceived or lacking in substance (s 55(1)(b)). In Alchin v Rail Corporation NSW [2012] NSWADT 142 Judicial Member Wright SC (as he then was) noted:

“This approach of construing "misconceived" as including a misunderstanding of legal principle and "lacking in substance" as encompassing an untenable proposition of fact or law has been applied by the Tribunal in many decisions …”

42. An application will be lacking in substance if it is based on “an untenable proposition of law or fact”: State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at 108‑109 per Ormiston J.

43. The University contends that matters 1, 2, 3, 11, 12, 16, 22, 29 and 30 fall into the sub-category where the applicant misinterpreted the document as evidence of a breach of an IPP. In addition, matters 9, 12, 13, 14, 16, 18, 21, 22, 24, 25, 27 and 29 refer to documents or information which are not “personal information” and matters 1, 7, 13, 19, 21 and 22 relate to information submitted by the applicant herself. It also includes items 23 and 31 which relate to another person’s personal information.

44. For these reasons the application is misconceived and lacks substance, in the University’s submission.

45. In item 1 the applicant claimed that University documentation wrongly showed that she is a citizen of Afghanistan. The University identified this as relating to s 16 of the PPIP Act which requires an agency to ensure that personal information is accurate before use. There was no claim of use made, however. In my view the conduct is more correctly considered with regard to s 11, which requires that the agency must take such steps as are reasonable in the circumstances to ensure that personal information collected is accurate, among other matters.

46. The University submitted that this instance arose from a form submitted by the applicant herself where she presumably clicked on the wrong country from a drop-down menu. The applicant disagrees with this interpretation and claims that multiple IPPs were breached without explaining how each was breached. I have viewed the form which is an application form of some kind with her personal details in it. The only possible IPP which would be relevant would be that in s 11. It is not clear how the information was collected and what reasonable steps should have been taken. In my view the matter is not obviously misconceived, however.

47. In item 2 the applicant refers to a University document which she says states she is an Australian citizen, in contrast to item 1. In her submissions the applicant states she is an Australian citizen. It does not disclose any conduct which the Tribunal could review.

48. Item 3 refers to a document which states she is ineligible for “ICAS” which the University identifies as the “Indigenous Commonwealth Accommodation Scholarship”. It responded that this statement is in fact correct as the applicant states elsewhere that she does not claim Aboriginal or Torres Strait Islander descent. This does not disclose any conduct which the Tribunal could review.

49. Item 6 concerns a document which shows that EJE was accepted to travel overseas on a study trip but she did not attend the trip and withdrew her acceptance. The University says that the University is required to keep a record of her acceptance and also her subsequent withdrawal, and no breach can be shown. The applicant does not deal with this matter in her submissions but refers to other complaints concerning her arts degree and Instagram pages. The trip to Japan is not mentioned. I conclude that the item is misconceived as even on the applicant’s own account there is no evidence of inaccuracy and no other form of conduct was originally claimed.

50. Item 28 is a duplicate of item 6.

51. Item 7 concerns a claim that a document erroneously states that EJE was transferred from one degree into another degree. The applicant submits that she did not submit any documents to the University stating a wish to transfer to that degree. She claims that numerous IPPs were breached but does not identify how. The University states that this document was completed by the applicant herself and there is evidence that she was asked by the University to clarify it as the course code and the name of the course did not match. I have viewed the documents in question and there is one document in which the University asks her to clarify information on her transfer form, in particular, which course she wishes to transfer to. The document does not state that she was transferred into the wrong degree, as EJE claims. There is no conduct which the Tribunal could review under the PPIP Act.

52. Item 9 is a statement that EJE left the University in March 2019 “after it became clear I was having my privacy breached as someone had been logging into my student portal and changing my password.” This does not identify any conduct by the University and therefore there is nothing which this Tribunal can review.

53. Item 11 concerns a claim that a document held by the University states that EJE is a refugee while another states she is ineligible for refugee status. The University contends that the form contains questions on the left side and responses to those questions on the right. The question of “Verified Refugee status” does not have a response, therefore there is no evidence to show that the first document states she is a refugee. The applicant contends she did not fill out the form and affirms she is not a refugee. She states “CSU cannot prove I filled out this form”. The issue is rather whether the University could be found to have breached s 11 by any conduct. This is conduct which the Tribunal could review.

54. Item 12 relates to a document which EJE claims wrongly identifies her field placement supervisor for a particular unit of study. The University responds that this document is a file note of a University officer’s conversation with EJE in 2017 and is not now able to be verified. On my viewing of the document, it records a phone call from EJE and records her request to speak to her supervisor and that she was transferred to a person said to be her supervisor. This is not information collected from the applicant, this is a statement by the person making the record. There is no claim that the information was used in any way. In my view this conduct does not fall within ss 11 or 16 or any other IPP.

55. Item 13 is a document dated 28 May 2018 which EJE claims falsely stated she asked to be removed as a student of the University. She states she did not ask for this until March 2019. The University says this is an email which the applicant sent herself and the matter was previously addressed by the University Ombudsman who found no evidence to support the allegation. EJE denies this and says the University should have contacted her to ensure the information was accurate.

56. The email dated 28 May 2018 states: “I would like to remove myself from CSU. I no longer want to do any degree. Can u please remove me from the Art and design (graphic arts) degree. Thank you.” The University responded on 29 May 2018. I understand that EJE suspects someone pretending to be her sent this email, however there is no evidence of this.

57. Section 16 (IPP 9) appears to be the relevant provision in this case, which requires the agency to check accuracy before use. This requires EJE to establish that the University availed itself of the information or applied it to its own purposes (FM v Vice Chancellor, Macquarie University [2003] NSWADT 78 at [42]). That is not part of her claim, however. In this, however, the University’s reply showed that it only provided her with information about the process to withdraw if she wished to do so. Neither the document nor EJE’s application shows any conduct which could be reviewed by the Tribunal under the PPIP Act.

58. Item 14 is a document dated 13 June 2019 which states that EJE received a response to her enquiry about her subject points from Garth Norris. She claims this contradicts another document which shows a response was sent to her by a Lyn Howells. EJE says she received no response from Lyn Howells. Whether or not she received a response is not an issue which the Tribunal can review under the PPIP Act.

59. Item 15 also comes within this sub-category, where EJE claims a form dated 2 September 2015 shows her as being Aboriginal and/or Torres Strait Islander. The University disputes this and says the form does not say that, the code “2” next to that entry means “No.” In my view the document does not contain the information which EJE says it contains therefore there is no conduct which could be reviewed.

60. Item 16 relates to 2 documents. EJE states one says she received an equity scholarship while another says she did not receive it. The University disputes this interpretation. EJE does not say which is correct. On viewing the document, one records she accepted an offer of a scholarship in 2019. The second document is addressed to her and says she will not receive a scholarship payment in Session 1, 2019. It is not clear whether the documents relate to the same session. The University has not established that this part of the application should be dismissed in my view, due to a lack of evidence.

61. EJE claims that the document in Item 18 dated 21 August 2019 states she enquired about a course. She disputes this. She claims that her emails are being accessed by unknown persons posing as herself in communications with the University. If this was true and an unknown person was behaving in this way, this does not relate to conduct of the University but of the unknown person. Her claim that the University should have verified that the email came from her is untenable as s 11 only requires it to take such steps as are reasonable. Therefore it is misconceived and lacks substance.

62. Item 19 deals with the same issues as Item 7.

63. Item 21 is a series of emails in September 2017. EJE is concerned that these convey a statement that she obtained a short term loan. She says this is false. The University says this is not within the scope of a request for internal review under the PPIP Act. On my reading of the emails, they convey that she applied for a loan but there is nothing to indicate that she received a loan. In my view this part of the application is misconceived and lacks substance.

64. Item 22 is a form containing questions and personal information in the answers. EJE states that the form erroneously states she relocated to the Port Macquarie campus when she did not. The University contends that while the questions relating to relocation appear on the document there are no responses, therefore the document cannot be interpreted as stating she relocated. Having viewed the document I agree with the University’s interpretation and conclude that this part of her application is misconceived and lacks substance.

65. Item 23 relates to a document which EJE received as part of her GIPA request but which contains personal information of a third party which is not relevant to EJE. The University acknowledges that it should not have been provided to her as part of her request for information. The University also acknowledges it is in breach of IPP 11 (s 18) in respect of disclosing the third party’s information and has undertaken to notify the third party of this breach. EJE however is not a person aggrieved by this as it is not her personal information which was disclosed. EJE claims the University failed to ensure that information collected about her was accurate and related to her but this is misconceived as the information does not relate to her. There is no jurisdiction in the Tribunal in a review under the PPIP Act to review a disclosure under the GIPA Act.

66. Item 24 is a printout which allegedly states EJE purchased a Galaxy phone through the Co-op Bookshop, which EJE denies. The University contends that if she has a dispute about this purchase she should address this to the bookshop. EJE responds that the Co-op bookshop no longer exists. It is unclear why the University had this document but this document does not establish any conduct of the University.

67. Item 25 also is a printout which EJE claims erroneously states she purchased items which she denies purchasing. The University’s response is the same as for Item 24.

68. In regard to Item 29 the University claims that EJE has misunderstood the email in question. EJE says it states she received a refund for a cancelled trip when she does not recall receiving a refund. The University says the email does not state this; instead it informs students how to apply for a refund.

69. In any event, this does not relate to any conduct which could breach an IPP. Whether or not she received a refund is not a reviewable issue under the PPIP Act.

Matters which are trivial such as the misspelling or truncation of a name or which arise from information provided by the applicant herself

70. Items 5, 24, 25, 27, 30 and 31 are identified by the University as coming within this sub-category.

71. A number of decisions have identified that an individual’s name is their “personal information”: see for example WL v Randwick City Council(GD) [2007] NSWADTAP 58 at [21]‑[22].

72. I note that item 4 deals with whether the University’s information regarding EJE and her name and the courses in which she was enrolled was accurate as she alleges there were numerous mistakes apparent to her. The University contends that this was already dealt with in the University Ombudsman’s response to an earlier complaint made by her on 28 April 2019 and there is insufficient information to show a breach of s 16. Again the University has not considered s 11 which also deals with accuracy of information and which could apply to this conduct.

70. Item 5 relates to a document which shows that EJE was accepted to travel to India. EJE’s concern appears to be with the way her name is shown on the document (once with her two middle names and once without) which indicates to her that she was enrolled twice under two different names. The University responds that her name is correctly recorded although it might not include her two middle names. Even on the applicant’s own version of the documents I do not consider that any breach of an IPP could be established, and therefore the instance lacks substance and is misconceived.

71. Item 17 is a duplicate of Item 5.

72. Item 8 also deals with the recording of EJE’s name. She states that the University addressed her by her former name in correspondence dated 2 June 2020 after she had advised the University of the name change and that her student card only carried her first name and last name. The University says there is no evidence of any breach of an IPP. EJE submits that she attended the University on 20 November 2019 to provide her identity documentation as the University was still referring to her by the name she no longer used. She claimed the University was well aware that her name had been changed as she had to provide her passport for a proposed trip to India organised by the University in 2017.

73. I cannot discern that any IPP could apply to the conduct of naming EJE incorrectly in correspondence. This instance lacks substance and is misconceived.

74. Item 20 is another instance in which EJE claims her name was incorrectly recorded in 2020 under her former name, although she had changed it and advised the University of this change in October 2019. The University says it has no evidence that she advised it of her name change in October 2019 and there is no breach of any IPP. It is correct that EJE is addressed by her former name but the documents in the bundle are dated 2019, not 2020. I am unable to determine this matter on the material before me and I conclude that the University has not established that this matter should be dismissed.

75. Items 24 and 25 are dealt with above.

76. Item 26 refers to a document which shows only one of EJE’s middle names. She alleges this document dates to 2017. In my view omitting a middle name where the rest of the name is correct is not conduct which could breach an IPP. In the case of s 11, the agency is only required to take such steps as are reasonable in the circumstances, and the document itself does not establish that the information collected was not accurate or incomplete in the relevant sense. In the case of s 16, a first name and last name in my view is an accurate representation of a name in many circumstances. This item is misconceived and lacks substance.

77. Item 27 relates to a document stating EJE was charged $1,000 for a University trip in 2018 which she claims took place in 2017. The University says this is a Finance document which lists a number of charges including a $1,000 charge dating to 2018. Inquiries revealed that this charge related to a different trip from that on the document and the charge was reversed when the applicant withdrew. This was an administrative error. EJE says she did not pay the amount. This is consistent with the University’s account but the University has not established that it is misconceived or lacks substance on this basis as there is insufficient evidence of the relevant facts.

78. Item 30 is a document which, according to EJE, states she was a member of a University Club, which she denies. The University responds that she has misinterpreted a form which has a question in respect of the Club. The answer is blank and therefore there is no statement that she is a member. Having viewed the document, I agree. In my view this part of the application is misconceived and lacks substance.

79. The conduct in Item 31 is claimed to be that the University made 6 copies of her son’s autism assessment report of which EJE provided one copy to a lecturer when applying for leave of absence. She claims his personal information has been distributed within the University as evidenced by the number of copies. The University responds that copies may be held within different areas of the University and copies may have been made when she applied for the information, but this is not a breach of any IPP.

80. I agree with the University. The fact that copies exist does not establish that any personal information has been disclosed. Copying information is not a breach of any IPP. In addition, the personal information concerned is that of her son, not her own personal information. If he is a minor, she could bring an application on his behalf, however in this case there is no relevant conduct to review.

Matters which are being used to agitate a collateral purpose

84. The University submits that items 9, 18 and 31 fall into this sub-category as they are being used to agitate complaints which do not relate to personal information.

85. These items have all been dealt with above where I have found that 9 and 31 do not relate to reviewable conduct and 18 is misconceived and lacks substance.

Matters which could not be attributed to the University’s conduct

86. The University referred to items 9, 10, 21, 24 and 25 in this sub-category.

87. Item 9 was dealt with in a previous sub-category.

88. Item 10 refers to alleged HECS debts on her tax file number which are incorrect, according to EJE. The University responds that this was previously raised with the University Ombudsman who found no evidence of the allegation and it is not a matter under the PPIP Act. She claims she was charged for a subject which she had withdrawn from. This appears to be a dispute regarding fees charged to EJE and the Tribunal does not have jurisdiction under the PPIP Act to determine matters relating to debts.

89. Items 21, 24 and 25 were dealt with above. Items 24 and 25 do not relate to conduct of the University and are not reviewable. Item 21 is misconceived and lacks substance.

Conclusions

90. It follows from what I have said above that the majority of the instances of conduct could not amount to a breach of any IPP and therefore do not deal with conduct which is reviewable by this Tribunal. Those will be dismissed under s 55(1)(b) of the CAT Act. There are several instances, however, where the University has not shown that they should be dismissed under s 55(1)(b) and which on their face deal with conduct of the University which is reviewable under the PPIP Act.

Costs

91. The respondent requested that its costs application be determined at the same time as and subject to its application for dismissal. Section 60 provides that the usual rule is for each party to pay their own costs but that the Tribunal may award costs in relation to proceedings only if it is satisfied that there are special circumstances warranting an order for costs.

92. The respondent submits that under s 60(3)(e) special circumstances may exist if proceedings are “frivolous or vexatious or otherwise misconceived or lacking in substance”. It has been put to the expense of responding to the application and the applicant has not made any attempt to narrow the scope of her application in light of the University’s responses.

93. The Tribunal may have regard to whether the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance in determining if special circumstances exist. Even if I am satisfied that special circumstances exist, I have discretion as to whether or not to award costs; I am not obliged to do so (Brodyn Pty Ltd v Owners Corporation – Strata Plan 73019 (No 2) [2016] NSWCATAP 224 at [21] and [24]).

94. By s 60(4)(a) of the CAT Act, the Tribunal is given discretion to determine “to what extent costs are to be paid”. This empowers the Tribunal to make a fixed sum costs order, if that is an appropriate course. The factors determining when a fixed sum costs order will be appropriate were considered in 203 Castlereagh Street Pty Limited v Skybloo Holdings Pty Limited [2017] NSWCATAP 29 and included:

1. where the sum of costs in question is relatively modest and the assessment task for the Tribunal is simple, and

2. where a party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment.

95. The respondent sought an order for fixed sum costs and provided copies of its invoices. An order for fixed sum costs should be based on an informed assessment of the actual costs, having regard to the information before the Tribunal.

96. I decline to order costs in this case. Firstly, the applicant is not legally represented and some legal errors are to be expected in those circumstances and are not out of the ordinary. Secondly, the respondent has not been fully successful. Thirdly, the costs of the application to dismiss could only be those costs reasonably necessary for the application such as drafting submissions and attending the hearing and there is insufficient evidence before me of the latter.

Orders

1. Items 2-3, 5-10, 12-15, 17-19, 21-26 and 28-31 inclusive contained in the application filed 22 December 2020 are dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013.

2. The proceedings are referred to the Registry to be listed for a further case conference.

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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: 07 July 2021