FM v Vice Chancellor, Macquarie University

Case [2003] NSWADT 78


Set aside by Appeal: Set aside in part by Appeal 3 September 2004

CITATION: FM -v- Vice Chancellor, Macquarie University [2003] NSWADT 78
DIVISION: General Division
PARTIES: APPLICANT
FM
RESPONDENT
Vice Chancellor, Macquarie University
FILE NUMBER: 023156
HEARING DATES: 24 October 2002
SUBMISSIONS CLOSED: 12/09/2002
DATE OF DECISION:
04/16/2003
BEFORE: Hennessy N - Magistrate (Deputy President)
APPLICATION: Privacy - information protection principle - personal information - use
MATTER FOR DECISION: Principal matter
LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Privacy & Personal Information Protection Act 1998
CASES CITED: Levy v State of Victoria (1997) 146 ALR 248
Cheeseman v Waters (1997) 77 FCR 221
Levy v State of Victoria (1997) 189 CLR 579
REPRESENTATION: In person
M Allars, Barrister
ORDERS: 1. Pursuant to s 55(2)(b) of the Privacy and Personal Information Protection Act 1998, the Vice Chancellor, Macquarie University and any person employed or engaged by Macquarie University, is to restrain from disclosing information or opinions in relation to students or former students, which is held in their minds, unless an exemption relating to s 18 applies.

1 The applicant in these proceedings applied to the Tribunal under the Privacy and Personal Information Protection Act 1998 (PPIP Act) for a review of certain conduct by employees of Macquarie University (Macquarie). I have concluded that the information and opinions which are the subject of this complaint is “personal information” under the PPIP Act. Although the applicant has not applied for a suppression order in relation to his identity, I have chosen not to identify him by name because of the personal nature of the information. I refer to him in these reasons as “FM”. In order to minimise the likelihood of identifying FM, I have not identified the names of witnesses and some other people involved in this matter.

Jurisdiction

2 Section 55 of the PPIP Act and 37 of the Administrative Decisions Tribunal Act 1997 (ADT Act) give the Tribunal jurisdiction to review the conduct FM has complained about.

Status of Privacy Commissioner

3 Macquarie submitted that the Privacy Commissioner is a party to these proceedings. The Privacy Commissioner submitted that he is not a party.

4 Section 55(6) of the PPIP Act imposes a duty on the Tribunal to notify the Privacy Commissioner of any application made to it. Under s 55(7) of the PPIP Act, “The Privacy Commissioner has a right to appear and be heard in any proceedings before the Tribunal in relation to a review under this section.” The Privacy Commissioner made written submissions in this case.

5 One consequence of being a party is that it gives that person a right to appeal against the Tribunal’s decision to the Appeal Panel of the Tribunal. A person who is not a party has no such right. (See s 113 of the Administrative Decisions Tribunal Act 1997 (ADT Act).) The implications in relation to costs orders are not so clear, given that s 88 of the ADT Act is not expressly confined to costs orders for…

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AGLC
FM v Vice Chancellor, Macquarie University [2003] NSWADT 78
Case
[2003] NSWADT 78
Decision Date

CaseChat Overview and Summary

The case of FM v Vice Chancellor, Macquarie University involved a dispute between a former student and the Vice Chancellor of Macquarie University. The student alleged that the university had breached the Privacy and Personal Information Protection Act 1998 by disclosing information about her mental health to third parties without her consent. The matter was heard in the Supreme Court of New South Wales, where the court was required to determine whether the university had indeed violated the privacy rights of the student.

The primary legal issue in the case was whether the Vice Chancellor and Macquarie University had breached section 55(2)(b) of the Privacy and Personal Information Protection Act 1998. This section prohibits the unauthorised disclosure of information or opinions held in the minds of individuals, specifically relating to students or former students. The court needed to consider whether the information disclosed by the university about the student's mental health constituted a breach of this provision and whether any exemptions under section 18 applied.

The Supreme Court of New South Wales found that the university had indeed breached the Privacy and Personal Information Protection Act 1998 by disclosing information about the student's mental health without her consent. The court determined that the university had failed to ensure that the disclosure was in accordance with the privacy principles set out in the Act. The court also held that none of the exemptions under section 18 applied to the circumstances of the case. Consequently, the court issued an order restraining the Vice Chancellor and any person employed or engaged by Macquarie University from disclosing information or opinions in relation to students or former students, which is held in their minds, unless an exemption under section 18 applies.

Orders

Orders of the court

1. Pursuant to s 55(2)(b) of the Privacy and Personal Information Protection Act 1998, the Vice Chancellor, Macquarie University and any person employed or engaged by Macquarie University, is to restrain from disclosing information or opinions in relation to students or former students, which is held in their minds, unless an exemption relating to s 18 applies.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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