GA v The University of Sydney (GD)

[2010] NSWADTAP 31

Appeal Panel - Internal

CITATION:	GA v The University of Sydney (GD) [2010] NSWADTAP 31
PARTIES:	APPELLANT GA RESPONDENT The University of Sydney
FILE NUMBER:	099056
HEARING DATES:	17 February 2010
SUBMISSIONS CLOSED:	17 February 2010
DATE OF DECISION:	13 May 2010
BEFORE:	O'Connor K - DCJ (President); Fitzgerald K - Judicial Member; Bolt M - Non-Judicial Member
CATCHWORDS:	PRIVACY – FREEDOM OF INFORMATION – Personal Records – Amendment – Collateral Attack – Tribunal Procedure – Hearing on Papers – Appeal dismissed
DECISION UNDER APPEAL:	GA v The University of Sydney [2009] NSWADT 230
FILE NUMBER UNDER APPEAL:	083137, 083211, 083336
DATE OF DECISION UNDER APPEAL:	09/07/2009
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Privacy and Personal Information Protection Act 1998
CASES CITED:	Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 Attorney General in and for the State of New South Wales v Klewer (No 3) [2010] NSWSC 9 Attorney General v Wentworth (1988) 14 NSWLR 481 Challita v NSW Department of Education and Training (GD) [2009] NSWADTAP 70 Crewdson v Central Sydney AHS [2002] NSWCA 345 GA v The University of Sydney [2009] NSWADT 230 Von Reisner v Commonwealth of Australia [2009] FCAFC 97
REPRESENTATION:	APPELLANT In person RESPONDENT S Heesom, Heesom Legal
ORDERS:	1. Appeal dismissed. 2. Directions in relation to the respondent’s foreshadowed application for costs, as at [36].

1 The appellant, GA, was at one time a student enrolled in the graduate Medical degree program at the University of Sydney. Later he applied under both the Freedom of Information Act 1989 (FOI Act) and the Privacy and Personal Information Protection Act 1998 (Privacy Act) for amendment of his student records. The University refused to make the amendments. He applied to the Tribunal for review. The Tribunal dismissed his case: see GA v The University of Sydney [2009] NSWADT 230 (7 September 2009). He now appeals.

2 An appeal must be made within 28 days unless leave to extend time is granted. It may be made as to a question of law, and, subject to the leave of the Appeal Panel, may extend to the merits. See generally, Administrative Decisions Tribunal Act 1997 (ADT Act), ss 112, 113.

3 The notice of appeal was filed 30 clear days (8 October 2009) after the date of the decision (7 September 2009). The issue was raised as to whether an extension of time for lodgement of the appeal was required. The case was determined on the papers, and the written reasons sent by mail to the parties. It may therefore be that the notice of appeal was not out of time, as the 28 day period runs from when the Tribunal ‘gives’ the parties the written reasons (s 113(3)(a)). At hearing the Appeal Panel decided that if the appeal was out of time, further time was to be extended (s 113(3)).

4 The questions of law assert that the Tribunal erred by failing to consider relevant matters, failing to give proper weight to relevant matters, taking into account irrelevant matters, ultra vires as the relevant jurisdictional facts did not obtain, asking itself the wrong question(s), failing to properly apply the reverse onus of proof, failing to properly apply the relevant legislation in determining the application, relying upon or dealing with matters that relied on evidence which the Tribunal itself had rejected, totally failing to consider parts of the application at all. The application for leave to extend to the merits has several paragraphs, which we will not recite here.

Enrolment History

5 GA applied for admission to the respondent University’s graduate Medical degree program in October 2000 with a view to commencing in the academic year 2001.

6 The course had two quotas, the standard quota, 182, and a second quota, 25 (the ‘rural quota’). The standard quota places were funded out of the ordinary tertiary education budget via the Commonwealth Department of Education, Training and Youth Affairs (DETYA). The rural quota was established to address the need for more doctors to work in rural Australia. To that end the Commonwealth funded a Medical Rural Bonded Scholarship Scheme, with a bonded scholarship of $20,000 p.a. (MRBS scholarship).

7 The following matters are mentioned because GA has attached importance to them in his submissions. The University’s original understanding, reflected in its documentation, was that the Department of Health and Ageing was the source of the Commonwealth funds for the rural quota. Subsequently the University learnt that it was DETYA. Persons admitted to either quota were liable to meet the Higher Education Contribution Scheme (HECS) requirements (the deferrable tax payment defraying the cost to the community of a person’s tertiary education).

8 The University first made offers of standard quota places. Standard quota offerees who had applied for the MRBS scholarship could elect to take up that scholarship. The consequence was that they were then treated as falling within the rural quota, and further offers were made to people qualified for a standard quota place. Once all standard quota places were filled, and if there remained any places unfilled in the rural quota, those places were to be offered to rural quota applicants who had failed to qualify for a standard offer. (See further, circular letter of Dean dated 18 October 2000, in evidence before the Tribunal.)

9 In the University’s view, it would not have been proper to make a standard quota offer to GA as he was not qualified for such an offer. Standard quota offers were confined to persons with interview scores of 1 or 2 (5 being the lowest score). GA had been scored at 3. In February 2001 he was offered a rural quota place as part of the reserve list offer process. He accepted the offer. He signed the relevant documentation, which included conditions relating to the consequence of withdrawal from the scheme.

10 He was a student in the years 2001 and 2002. He withdrew from his studies in 2003. In February 2004, he relinquished the MRBS scholarship. In the University’s view, he was no longer entitled to remain enrolled. The University moved to terminate his enrolment. He contested that action in the Supreme Court. The proceedings were settled on the basis that if the Commonwealth agreed to reinstatement of his MRBS scholarship he could continue his studies. He did not seek reinstatement of the scholarship. The University terminated his enrolment.

11 GA’s belief is that he was at all times qualified for a standard quota offer, and that wrongly such an offer was never made to him. He should, therefore, have been afforded the right of a person belonging to the standard quota to remain enrolled.

Applications to University for Amendment of Personal Records

12 In December 2007 he applied to the University for amendment of his academic record, invoking the right given by s 15 of the Privacy Act, and made further applications in March 2008 and October 2008, respectively, for amendment of personal records, invoking the right given by s 39 of the FOI Act.

13 Section 15(1) of the Privacy Act states:

15 Alteration of personal information

(1) A public sector agency that holds personal information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the personal information:

(a) is accurate, and

(b) having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading.

14 Section 39 of the FOI Act states:

39 Right to apply for amendment of agencies’ records

A person to whom access to an agency’s document has been given may apply for the amendment of the agency’s records:

(a) if the document contains information concerning the person’s personal affairs, and

(b) if the information is available for use by the agency in connection with its administrative functions, and

(c) if the information is, in the person’s opinion, incomplete, incorrect, out of date or misleading.

15 If the agency is not prepared to accede to a proposed amendment, each Act gives the aggrieved person a right to have a notation included in the affected files containing their view of the matter: Privacy Act, s 15(2); FOI Act, s 46.

16 The University refused to effect the amendments sought. It did not accept that the records were inaccurate, incomplete, misleading or out of date. It treated the FOI applications as having the same purpose as the Privacy Act application.

Applications for Review

17 GA applied to the Tribunal for review of both decisions. The Tribunal affirmed the University’s decisions in respect of the FOI applications, and decided that no further action should be taken in respect of the Privacy Act application.

18 The Tribunal made the following comments on the purpose sought to be achieved by the amendments:

25 It can be seen that there is a substantial duplication in the issues covered by GA’s three applications for review, and that each relates to the same substratum of facts. The second FOI application is however much more comprehensive in its coverage and includes requests for the insertion of editorial comments as to the nature of various entries in the records: e.g. indicating that various terms are accounting and their political nature. …

48 Collateral Attack - It is apparent that for a number of years GA has been in dispute with the University and others with respect to the nature of his enrolment in the GMP, and whether he held an independent HECS place in the program or one contingent on his continued participation in the MRBBS. That dispute extends to the legitimacy or otherwise of the University’s decision to terminate his enrolment in that program following his withdrawal from the MRBBS, and the termination of his scholarship contract. These issues have, in part, been the subject of Supreme Court proceedings between GA and the University which were settled with orders being made by consent.

19 The Tribunal goes on at paras [49] to [55] to explain its view that the applications are unmeritorious:

49 It is equally apparent that in the present proceedings GA seeks to agitate, under cover of applications to amend under the PPIP Act and FOI Act, all these issues so that the University’s records accord with his assertions as the facts of his enrolment in the GMP. …

50 I have no hesitation in finding that in seeking to use the FOI Act to achieve these objects GA is mounting a collateral attack on the University, aimed at achieving remedies which should properly be pursued in other forums.

51 It is obvious that GA is seeking to use the FOI Act as a means of reviewing the totality of the University’s conduct in relation to his enrolment in and termination from the GMP. I accept, as the University submits, that his primary goal in doing so ‘is to be readmitted to the Graduate Medical Program.’ The Court of Appeal in Crewdson v Central Sydney AHS [2002] NSWCA 345 said that the amendment provisions of the FOI Act are not a vehicle for the review of the ‘merits or legality of the official action recorded in them.’ Attempts to use them for such collateral purposes, the Court instructed, should be ‘rejected.’

52 While no similar decision has been made with respect to the amendment of personal information provisions in s 15 of the PPIP Act, I think the principle in Crewdson equally applicable to s 15.

…

54 Consequently, I will follow the decision of the Court of Appeal in Crewdson and decline to engage in any exercise resembling a review of the merits or legality of the University’s actions recorded in personal information it holds about GA, and in the information concerning his personal affairs. The University submits, and I agree, that this is the purpose underlying all of GA’s applications. His aim is to be re-enrolled in the program.

55 While that alone is a sufficient to affirm the internal review decisions in the FOI matters, and to decide to take no action of the PPIP Act matter, I have also concluded that I should briefly outline my reasons for coming to the conclusion that the information which GA otherwise seeks to amend and/or delete is not incomplete, incorrect, out of date or misleading or inaccurate. In doing so it is important to bear in mind that the amendments, deletions and comments sought by GA, in all his applications, are tightly focussed on having the information reflect his assertion that he was offered a standard HECS place in the GMP for 2001, in the first round of offers, for the 2002 academic year. That object merely reinforces the fact that these applications are a collateral attack seeking to question the merits and legality of the University’s actions with respect to his participation in that program.

20 The Tribunal went on to examine substantively the basic points of amendment sought by GA. It dealt with these issues at [56]-[69]. Critically, it rejected any characterisation of the offer made in February 2001 as a first round offer having regard to its timing, the contents of the offer material and statements made at the time by GA. See [64]-[65]. Having rejected his case on this point, all the numerous consequential amendments that might flow did not, in its opinion, need to be considered. It had regard to what it understood to be the view of GA that he agreed to that course if the primary finding was against him.

The Appeal

21 GA’s written submissions in support of his appeal grounds have 64 pages plus attachments. In reply the University filed a notice of reply, and submissions (10 pages).

22 His submission commences by criticising the Tribunal for misconstruing his concern. He says that the Tribunal was wrong in describing his case as being that he was made a first round offer. He agrees that he was only ever made a reserve round offer of a bonded place. He says at [33] of his submissions:

[GA]’s application put in issue that anything that shows otherwise than he qualified for a First round offer be amended .

23 His submissions then go on to challenge the Tribunal’s statements under the heading ‘collateral attack’ set out earlier in these reasons. He refers, for example, to the text of para [55] as an example of the misconstruction of his case. In our view, there is no strength to these submissions. Plainly GA is using the vehicle of the amendment rights given by the Privacy and FOI legislation to mount a case over his eligibility for a standard quota offer, and how that affects the lawfulness of the administrative actions subsequently taken by the University.

24 The amendment rights given by Privacy and FOI applications belong to the practical world of administration in regulated agencies. Here the regulated agency is a major university and the dispute goes to records of fundamental importance, student admission and enrolment records. GA does not himself dispute the University’s understanding of the process the University engaged in and the accuracy of its records insofar as they follow from and are based on that understanding. In our view, concessions of this kind must bring to an end any debate as to accuracy and completeness in the practical world of a regulated agency.

25 GA’s essential case is that he should have been treated differently, and, insofar as he was not, the University’s conduct was invalid and unlawful. We agree with observations of the Member below, drawing in turn on the following remarks of Handley JA in Crewdson v Central Sydney AHS [2002] NSWCA 345 at [24]:

24 The appellant’s attempt to use the Act as a vehicle for the collateral review of the merits or validity of official action should be rejected in any event. The Act is concerned with the accuracy of official records, not with the merits or legality of the official action recorded in them. Compare Re Resch and Dept of Veterans’ Affairs (1986) 9 ALD 380, 386, 387 (Hall DP) and Hewitt v Grabicki 794 F. 2d 1373 (9th Circuit 1986), 1378.

26 In our view, GA’s use of the amendment facilities of the two Acts border on the absurd. He had the opportunity back in February 2001 to ventilate this issue, and again in the context of the Supreme Court proceedings of 2004.

27 The Tribunal chose to proceed to give substantive consideration to GA’s case, when in our view it need not have done so. As to this part of its reasons, we do not consider that the Tribunal displayed any significant misunderstanding of GA’s case. It was satisfied that the official records of the University as to the fundamental matter – the process followed in making the reserve list offer and its administrative context – were accurate and complete. It did not need, as we see it, then to go on and deal seriatim (as GA submits) with the numerous further amendments he sought to numerous records of the University. His Privacy Act amendment application had 4 points (see reasons, [16]), his first FOI application had 9 points (reasons [21]) and his second FOI application had about 65 points (reasons, [23]). It may be, as GA asserts, that not all his points were consequential on him being successful in respect of his primary point. In our view, the Tribunal was, at the least substantially, correct in its view that the numerous further amendments were consequential.

28 Procedural Fairness. The Tribunal exercised the power given by s 76 of the ADT Act, and decided the matter ‘on the papers’. Section 76 provides:

76 Circumstances in which hearing may be dispensed with

The Tribunal may determine proceedings by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing if it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties.

29 In Challita v NSW Department of Education and Training (GD) [2009] NSWADTAP 70 the Appeal Panel said:

25 The basic principle of the ADT Act is that oral hearings be conducted, and that they occur in public: see ADT Act, s 75(1). ‘Open justice’, as it has come to be called, is basic to maintaining public confidence and understanding of the administration of justice, and serves wider democratic values. See, generally, Chief Justice Spigelman, ‘Seen to be Done: The Principle of Open Justice’, (2000) 74 ALJ 290, 378; John Fairfax Publications Pty Ltd & 2 Ors v Ryde Local Court & 3 Ors [2005] NSWCA 101; 62 NSWLR 512.

26 The s 76 procedure operates therefore as an exception to the usual procedure for hearing and determining matters in the Tribunal. The discretion to be exercised is entirely one for the Tribunal. It must ‘appear’ to the Tribunal that the issues for determination can be adequately determined in the absence of the parties. There is no requirement of consultation (see further Horner v West (EOD) [2008] NSWADTAP 3 at [14]). This position contrasts with comparable provisions in the tribunals’ legislation elsewhere in Australia: see, for example, Administrative Appeals Tribunal Act 1975 (Commonwealth), s 34J; Victorian Civil and Administrative Tribunal Act 1998 , s 100. However, it is normal for the Tribunal to ask for the views of the parties, and take them into account, as occurred here.

27 The judgement allowed by s 76 can, perhaps, be most easily made in cases where there are statements of agreed facts, legal representatives and well-prepared legal submissions. It is less easily able to be made in cases where there is an unrepresented party on one side, with the greater potential for dispute about the underlying facts, and, perhaps, a greater suspicion about the fairness of desk decision-making. The Tribunal itself has a duty, under s 73 of the ADT Act, to ensure that the parties have an understanding of the nature of the assertions and the nature of the legal implications of the proceedings.

30 GA states that he did not consent to a hearing on the papers and that he wished to call a number of witnesses and put certain evidence in issue, and therefore it was unfair for the Tribunal to determine his applications on the papers. The University had applied for the case to be heard on the papers at a planning meeting. The Tribunal granted the request at a later directions hearing, having considered GA’s request to the contrary.

31 The University submits that GA was given adequate opportunity to make submissions (the timetable spanned about 24 weeks). The University says that many of the proposed witnesses sought by GA were either unable to give relevant evidence, and of those who could give relevant evidence, none would be able to give evidence that was not already before the Tribunal in documentary form. The University submits that the process adopted by the Tribunal was procedurally fair and did not disadvantage GA.

32 The power given to the Tribunal belongs to its case management responsibilities; as to which, see further Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009). While the power must be exercised fairly, we see nothing in this case to suggest that the Tribunal did other than give full consideration to the competing views, and exercised its discretion in a lawful way.

33 The appeal has not identified any errors of law.

34 The grant of leave to extend to the merits is not dependent on the demonstration of an error of law. It is a broad, untrammelled discretion. As we have indicated, GA has had opportunities to address his underlying grievance in more appropriate forums. The application for leave to extend to the merits is refused.

Costs

35 The University foreshadowed an application for its costs.

36 The following directions are made:

1. Respondent to file and serve submissions within 21 days.

2. Appellant to file and serve submissions in reply within a further 14 days.

3. Decision to be made without holding a hearing, as permitted by s 76 of the Administrative Decisions Tribunal Act 1997.

4. Any objection to the matter being dealt with on the papers to be notified to the Registrar and the other party within 7 days of the date of these directions, being the date of publication of these reasons. The Appeal Panel will consider the objection.

Order

1. Appeal dismissed.

2. Directions in relation to the respondent’s foreshadowed application for costs, as at [36].