EJX v University of Newcastle

[2022] NSWCATAD 139

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EJX v University of Newcastle [2022] NSWCATAD 139

Hearing dates:

On the papers after 1 February 2022

Date of orders:

29 April 2022

Decision date:

29 April 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

P French, Senior Member

Decision:

(1) A hearing of this interlocutory application is dispensed with in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013.

(2) The application is refused.

(3) If either party contends for a non-publication order to be made in these proceedings, they are to:

(i) notify the Tribunal and the other party that such an order is sought; and

(ii) specify the terms of the order sought; and

(iii) provide to the Tribunal and the other party any submissions in support of the application:

at the next listing of the application.

Catchwords:

ADMINISTRATIVE LAW – Privacy and Personal Information Protection Act 1998 – administrative review of a reviewable decision – administrative review of conduct of the agency

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Privacy and Personal Information Protection Act 1998

Cases Cited:

Raissis v Anaz [2019] NSWCATAP 25

ZND v ZNE [2020] NSWCATAP 34

Category:

Procedural rulings

Parties:

EJX (Applicant)
University of Newcastle (Respondent)

Representation:

Applicant self-represented
Hicksons Lawyers (Respondent)

File Number(s):

2021/00219950

Publication restriction:

The publication or broadcast of the name of the applicant is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013. The applicant is to be known by the pseudonym “EJX”.

REASONS FOR DECISION

Introduction

1. The substantive application before the Tribunal is an application by EJX (the applicant) under section 55 of the Administrative Decisions Review Act 1997 (ADR Act) for an administrative review under section 55(1) of the Privacy and Personal Information Protection Act 1998 (PPIP Act) of conduct by the University of Newcastle (the agency) which has been the subject of an internal review pursuant to s 53 of that Act which she alleges was in contravention of information protection principles contained in Part 2, Division 1 of the PPIP Act. This application was made to the Tribunal on 2 August 2021 (the application).

2. The applicant has applied for an interlocutory order that would require the agency to produce to her “all documents relevant to the internal review”. It is that application which is before me for determination. For reasons set out following, I have refused to make the order sought.

Publication restriction

3. The substantive application is a privacy matter. The Divisional Registrar has a standard practice in privacy matters of anonymising the identity of an applicant by substituting a pseudonym for their name until the application is first listed before the Tribunal. At that first listing, the Tribunal considers if an order should be made pursuant to 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) restricting the publication of the applicant’s name. It does so after hearing from both parties on that issue. That has not happened in this case to date.

4. The only matter before me for decision is the applicant’s interlocutory application in relation to the production of documents. I am to deal with this matter on the papers (see following). There is therefore no opportunity for me to hear from the parties in relation to any non-publication order.

5. Section 64(1) of the NCAT Act provides that the Tribunal may of its own motion make an order pursuant to s 64(1)(a) restricting the disclosure of the name of a party to the proceedings. In the circumstances, I will make such an order to restrict the publication of the applicant’s name and to continue the use of the pseudonym “EJX” in its place. I do so until further order of the Tribunal, essentially to preserve the status quo.

6. In this respect I note that pursuant to s 64(3) of the NCAT Act the Tribunal may vary or revoke a non-publication order made under s 64(1) any time in the proceedings on the application of a party or on its own motion. If either party contends for a non-publication order to be continued or varied in this proceeding they are to make an application for such an order in accordance with direction 3 of the orders set out above at the next listing of the application.

Determination process and material considered

7. By directions made by the Tribunal on 16 November 2021 (as amended on 23 November 2021), the parties had the opportunity to file and exchange submissions in relation to this interlocutory application. Both parties have complied with those directions.

8. In reaching my determination I have considered the procedural directions made by the Tribunal to date for the conduct of the substantial application to final hearing and the following material filed by the parties:

Applicant

1. Administrative Review Application Form filed on 2 August 2021 and its Annexures 1 to 3;

2. Submissions filed on 1 December 2021 including Annexure A1.

Agency

1. Submissions filed on 14 December 2021.

2. Section 58 documents filed on 13 April 2022.

9. I have determined to dispense with an oral hearing in relation to this application pursuant to s 50(2) of the NCAT Act. In this respect I am satisfied that the parties have been provided with the opportunity to make submissions as to whether the Tribunal should dispense with a hearing as required by 50(3) and that the application can be adequately determined in the absence of the parties.

Background

10. The applicant is (or at least was at the material time) a higher degree student enrolled with the agency. The dispute arises from changes that were made to her supervision arrangements in February 2018. It is contended by the applicant that a variation of candidature form relating to supervision arrangements which she had completed and signed was changed without her knowledge prior to her supervision arrangements being considered and confirmed by the agency. She contends that her personal information, which I understand to be her name, student identification number, and signature were used in this process contrary to information protection principles to which the agency was required to adhere. She contends that her higher degree candidature has been impaired as a result of the changes made to her supervision arrangements made at that time.

11. The internal review determination by the agency confirmed that the agency used the applicant’s name, student identification number and signature to process a variation of candidature relating to the applicant’s supervision arrangements in February 2018. However, it determined that this did not constitute any contravention of an information protection principle.

The order sought

12. The order sought by the applicant is set out at paragraph 12 of her submissions dated 1 December 2021 as follows:

The University of Newcastle is to give to the Tribunal and the applicant the following material: all documents relevant to the internal review by (a timeframe set by the Tribunal).

Contentions of the parties

Applicant

13. The applicant is critical of the internal review decision on the basis that the agency did not annex to it all documents she believes the internal reviewer considered in the course of the review. She contends, by reference to s 63(1) of the ADR Act, that in conducting an administrative review of the internal review it is necessary for the Tribunal to have all of this material before it so it can conduct a “thorough review”. She also contends that:

27.   Collecting the material by the University will be very easy and quick considering the fact that the material was already collected and provided to one reviewer in a specific and short timeframe. All requested materials are available at the University and provided to the reviewer for the purpose of review of the conduct, noting that the University was the only party in the review process at entire time.

14. The applicant submits that this material should be produced by the agency at this point in the proceedings so as to enable the Tribunal to “make an easy, cheap and quick investigation”. She contends that failure to make the order sought will “make the proceeding very lengthy and cause [her] further costs … for the issue of a summons and further follow-ups”.

Agency

15. The agency submits that the Tribunal ought to refuse to make the order sought by the applicant because, having regard to the directions the Tribunal made on 16 November 2021, it is superfluous in that it would duplicate existing orders. In this respect the agency submits that order 3 of the existing orders already provides for the applicant to issue a summons on the agency to produce documents, and order 6 already requires the agency to submit its points of defence to the application and all material in support, both by specified dates.

16. It is contended that to the extent that the applicant wants to call on the agency to produce documents that it will not produce in any event in accordance with direction 6 the appropriate course is for her to issue a summons on the agency. The agency submits that this avenue will ensure: that the applicant’s demand for documents is confined to a real and substantial forensic purpose; that it has a sufficient apparent connection to the issues before the Tribunal; that there is a reasonable basis to believe that they will materially assist in relation to an issue in the proceedings; that it is not a fishing expedition, including for the purpose of assisting the applicant to make a case where it does not otherwise sufficiently exist; and, that it is not oppressive, in that it is not overly broad or onerous.

The applicable law

The NCAT Act

17. Section 36 of the NCAT Act establishes a “guiding principle” to be applied by the Tribunal in all aspects of its practice and procedure. That principle is the “just, quick and cheap resolution of the real issues in the proceedings”: s 36(1). The Tribunal must seek to give effect to the guiding principle when it exercises any power given to it by the NCAT Act or the procedural rules, or when it interprets any provision of the NCAT Act or the procedural rules: s 36(2)(a) and (b). Consistent with this guiding principle, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings: s 36(4).

18. Section 38 of the NCAT Act sets out the procedure of the Tribunal. The following procedures are notable in the present circumstances. Section 38(1) provides that the Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision (emphasis added). Section 38(5)(c) provides that the Tribunal is to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.

19. Also of potential significance is s 38(6)(a), which provides that the Tribunal is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings. However, it is important to appreciate that s 38(6)(a) is a permissive power, which is not to be read literally: Raissis v Anaz [2019] NSWCATAP 25 at [23] – [26]; ZND v ZNE NSWCATAP [2020] NSWCATAP 34 at [33].

20. Section 48 contains the Tribunal’s power to compel the production of evidence in proceedings. It provides for a summons to be issued by a Registrar either on the application of a party to the proceedings or at the direction of the Tribunal, which would require, relevantly, the person to whom the summons is addressed to produce documents or attend a hearing to give evidence: s 48(3).

21. Section 67 concerns documents that are subject to privilege. Section 67(1) relevantly provides that nothing in the NCAT Act requires the disclosure of a document if the Tribunal or President is satisfied that the evidence of the document could not be adduced in proceedings before a NSW Court by reason of the operation of s 9 of the Evidence Act 1995. In this respect section 67(2) defines “disclosure” of a document to include the provision of copies of the document, the granting of access to the document and the disclosure of the contents of the document (including a part of a document).

The PPIP Act

22. Turning now to the PPIP Act, the starting point for consideration of the order sought by the applicant is found in section 55(1) of the PPIP Act which sets out the scope of the administrative review the Tribunal is empowered to conduct in relation to an internal review conducted by an agency under s 53. It provides:

1. 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

   23. The Tribunal’s role in conducting an administrative review of conduct that has been the subject of an internal review conducted under s 53 is set out, principally, in s 55(2) of the PPIP Act:

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.

   24. Section 53(3) provides that nothing in section 55(2) limits any other powers of the Tribunal under Chapter 3, Part 3, Division 3, of the ADR Act.

The ADR Act

25. In determining an application for administrative review of an administratively reviewable decision under Chapter 3, Part 3, Division 3, of the ADR Act, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it including any relevant factual material and any applicable written or unwritten law: s 63(1). For this purpose the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision: s 63(2).

26. In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal: s 63(3). It may also determine an application of administrative review by remitting the decision to the administrator who made it for reconsideration at any time in the proceedings: s 65.

27. Section 58 of the ADR Act reposes a duty in an administrator to lodge material documents with the Tribunal in relation to an administratively reviewable decision (the s 58 documents). It relevantly provides:

1. Duty of administrator to lodge material documents with Tribunal where decision reviewed

2. An administrator whose administratively reviewable decision is the subject of an application for review to the Tribunal must, within 28 days after receiving notice of the application, lodge with the Tribunal:

   …

   (b)    a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal.

…

1. If the Tribunal or President considers that other particular documents (or that other documents included in a particular class of documents) may be relevant to the determination of the application, it may cause a notice in writing to be served on the administrator:

   (a)    stating that the Tribunal or President is of that opinion, and

   (b)    directing the administrator concerned to lodge with the Tribunal, before a date specified in the notice, a copy of each of those other documents that is in the possession, or under the control, of the administrator.

2. The principal registrar of the Tribunal is to grant reasonable access to the applicant in the proceedings to any copy of a document lodged under this section by an administrator. Reasonable access includes, but is not limited to, enabling the applicant to make a photocopy of a document during ordinary business hours.

3. If a party to proceedings before the Tribunal seeks a summons under the Civil and Administrative Tribunal Act 2013 against an administrator for the production of any document and a copy of that document has been lodged with the Tribunal under subsection (1) or (4), the Tribunal may (on such conditions as it considers appropriate) direct the principal registrar of the Tribunal to grant the party access to its copy of the document instead of issuing a summons if access to the document could lawfully be required by the issue of a summons.

4. Nothing in this section requires the disclosure of, or the granting of access to, any document (or a copy of a document) in contravention of any of the following:

   (a)    an order made under section 59 (Objections to lodgment),

   (b) an order made under section 64 (Tribunal may restrict disclosures concerning procedures) of the Civil and Administrative Tribunal Act 2013 ,

   (c) section 66 (Effect of Government Information (Public Access) Act 2009 ) or section 67 (Privileged documents) of the Civil and Administrative Tribunal Act 2013 (as applied by section 67 of this Act).

5. For the purposes of this section, a reference to a document in the possession of an administrator includes a reference to a document to which the administrator has an immediate right of access.

Consideration

28. The application for the order sought was made at the first case conference convened in the proceedings after an earlier mediation ultimately proved unsuccessful. It was thus made at a very early stage in the proceeding, and before the agency had filed the s 58 documents with the Tribunal. The agency has subsequently done so, although not within the 28 days from notice of the application required by s 58(1) of the ADR Act. That submission is accompanied by objections to the production of some documents made pursuant to s 59(2)(a) of ADR Act and s 67 of the NCAT Act.

29. It is not clear to me from a file review I have conducted if the agency has served a copy of its s 58 documents and its objections to the disclosure of these documents on the applicant. In any event, the Tribunal has made no determination in relation to the agency’s objections to production or disclosure, assuming they are contested by the applicant. For this reason, I consider the application before me now to be premature. The procedure in Chapter 3 Part 3 Division 1 of the ADR Act should result in all of the relevant documents which should properly be before the Tribunal being filed.  If that is not the case the existence and relevance of any additional documents in the possession of the agency, that are not already in evidence, will be better ascertained once it is clear what is before the Tribunal and available to the applicant from the s 58 documents.

28. The Tribunal’s role in conducting an administrative review of conduct that has been the subject of an internal review under s 53 of the PPIP Act is circumscribed by s 55(1). The focus of the administrative review is conduct of the agency that was the subject of the internal review application. The Tribunal is not charged with any broad ranging investigation into the agency. On its face, the dispute that is before the Tribunal is of relatively narrow compass. The internal review conducted by the agency has confirmed the conduct the applicant complained about but has concluded that this conduct did not constitute a contravention of an information protection principle.

29. That being the case, despite the Tribunal’s extensive powers to compel the production of documents under both the NCAT and ADR Act, consistent with the Tribunal’s guiding principle, care must be taken not to permit the escalation or extrapolation of the dispute beyond the matter which is squarely subject to administrative review. To do otherwise is likely to result in unnecessary complexity which will add to the time and party/party and public costs associated with finalising the administrative review.

30. In this respect, it is to be observed that the order sought by the applicant is plenary in form. It calls for “all documents”, subject only to the qualification that these are “relevant” to the internal review. In a dispute such as this there is likely to be a high degree of subjectivity attached to that qualifier. That is, some documents may have undisputed immediate or closely proximate relevance, whereas the relevance of other documents may be disputed because of their remoteness or lack of any apparent connection with the dispute. Consequently, even if the Tribunal were to make the order sought by the applicant there is a likelihood that the issue of what are “relevant documents” would remain to be resolved.

Order

33. For the foregoing reasons:

1. The application is refused.

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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: 29 April 2022