Kelly v University of New South Wales

[2024] NSWCATAD 203

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Kelly v University of New South Wales [2024] NSWCATAD 203

Hearing dates:

27 June 2024

Date of orders:

25 July 2024

Decision date:

25 July 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Sullivan, Senior Member

Decision:

The proceedings are dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW).

Catchwords:

ADMINISTRATIVE REVIEW – interlocutory application – dismissal

Legislation Cited:

Administrative Decisions Review Act 2007 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:

Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256

BDK v Department of Education ad Communities [2015] NSWCATAP 129

BKM v Sydney Local Health District [2015] NSWCATAD 87

BQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 64

CYL v YZA [2017] NSWCATAP 105

DA Christie Pty Ltd v Baker [1996] VicRp 89 [1996] 2 VR 582

EMF v Cessnock City Council [2021] NSWCATAD 83

General Steel Industry v Commissioner for Railways (1964) 112 CLR 125

Health Care Complaints Commission v Hill [2022] NSWCA 270

Hossain v Minister for Immigration and Border Protection [2018] HCA 34

Kelly v University of New South Wales [2023] NSWCATAD 262

NR v Department of Education and Training [2010] NSWADTAP 75

PC v University of New South Wales (GD) [2005] NSWADTAP 72

Y v Director General, Department of Education and Training [2001] NSWADT 149

Category:

Principal judgment

Parties:

Milton Kelly (Applicant)
University of New South Wales (Respondent)

Representation:

Applicant (Self Represented)
Bartier Perry Solicitors (Respondent)

File Number(s):

2024/00154941

Publication restriction:

None

REASONS FOR DECISION

1. This decision deals with an interlocutory application filed by the University of New South Wales (University) to dismiss these proceedings under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act).

2. The substantive proceedings involve a request for administrative review filed by Mr Milton Kelly (Mr Kelly). He seeks review under the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act). The University is a “public sector agency” for the purpose of that Act.

3. For the reasons discussed below, the proceedings are dismissed.

BACKGROUND TO THIS APPLICATION

4. Mr Kelly has made previous applications for review by the Tribunal. They include requests and applications under the PPIP Act and also under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for the deletion or provision of files and documents, and other requests and demands regarding his complaints about conduct of University staff.

5. The background is recorded in previous interlocutory decisions concerning other proceedings he commenced. It is necessary to refer to these other proceedings in some detail. The relevant materials were before the Tribunal in these proceedings as attachments to the statement of Mr James Bernard Mattson (Mr Mattson), filed in support of the University’s application to dismiss. Mr Mattson is the solicitor representing the University. This is not the extent of Mr Kelly’s applications, but they are the ones of relevance to the matter before me.

The First Proceedings (numbered 2023/00216033).

6. A final hearing of the First Proceedings was held on 18 June 2024. The decision is reserved.

7. Prior to that final hearing, there were two interlocutory applications by the University. The first was a notice to dismiss. The second involved a request for confidentiality orders regarding the volumes of documents prepared by the University and provided to the Tribunal (and, with redactions, to Mr Kelly) under s 58 of the Administrative Decisions Review Act 2007 (NSW) (ADR Act). Decisions regarding these interlocutory applications were issued:

1. by SM Little on 12 October 2023 in Kelly v University of New South Wales [2023] NSWCATAD 262 (Kelly 1), in which the application to dismiss was refused, but the scope of the proceedings limited; and

2. by SM Dubler SC on 22 February 2024 (Kelly 2), in which orders were made regarding the confidentiality of certain material, and that disclosure to the applicant of that material was prohibited (Confidentiality Orders).

8. Neither decision was appealed.

The First Interlocutory Decision (Kelly 1)

9. The Tribunal reviewed the history of the requests and correspondence in detail to determine the Tribunal’s jurisdiction in respect of the various matters raised by Mr Kelly in respect of his application to the Tribunal. References below are to paragraphs of Kelly 1.

Request for deletion of documents

10. Part of Mr Kelly’s application involved a request to delete information, which was made to the University in the following terms (Deletion Request):

I want UNSW to delete all erroneous information about me that it possesses, including but not limited to:

All documents referring in any way to me or anything done by me as “criminal”

All documents stating or implying that I’ve committed any assault

All documents stating or implying that I’ve either behaved threateningly or made threats.

11. The Tribunal found that the proceedings were limited to a review of conduct by the University being the failure to delete records in accordance with the Deletion Request, and to instead amend them in accordance with a decision made by the University on 8 December 2022 (the Deletion Decision).

12. The Deletion Decision had been the subject of a request for internal review and an Internal Review Decision dated 6 June 2023 issued by Sparke Helmore Lawyers (Deletion Internal Review Decision), and the proceedings were initiated within 28 days (being filed on 30 June 2023).

13. The Tribunal found it had jurisdiction to administratively review the conduct the subject of the Deletion Decision in respect of sections 15, 16 and 17 of the PPIP Act ([62], [69]).

14. However, other complaints and requests had been included in the application, and the consequences were as set out below.

Complaints regarding the conduct of University staff

15. It was found by the Tribunal ([16], [23]-[24]) that Mr Kelly had made a range of allegations regarding the conduct of University Staff – including that they had made “false claims” and were lying about him. He requested that employees be sacked and punished, he wanted an apology from the University, and he wanted the rescission of all actions taken against him. These claims had been the subject of:

1. a request for internal review under s 53 of the PPIP Act on 21 October 2022 (Staff Complaint Internal Review Request); and

2. an internal review decision issued to Mr Kelly on 17 January 2023 (the Staff Complaint Internal Review) (see [73]).

16. However, it was unclear based on the materials before the Tribunal whether Mr Kelly applied for an internal review within 6 months of the decision pursuant to s 53(3) of the PPIP Act (at [72]). Further, even accepting that the application for an internal review was made within time, to the extent that the application for administrative review was meant to include the conduct the subject of the Staff Complaint Decision, the application for administrative review was out of time (at [73]).

17. The Tribunal concluded (at [74]-[77]) (my emphasis):

74. This would not necessarily preclude the Tribunal from exercising jurisdiction in circumstances where an extension of time is applied for (in writing) and granted. In this respect, by reason of subsection 41(1) of the CAT Act, any period of time specified in any enabling legislation can be extended provided it is legislation in respect of which the Tribunal has jurisdiction.

75. However, even accepting that an extension of time is applied for and granted, I find that on the face of the Application, a reference to the conduct the subject of the Staff Complaint is not made. While there are extracts of emails attached that complain of the conduct of the specific employees, it is not clear given the description on the face of the Amended Application that this conduct is relied upon. This is also in the context of there being approximately 70 email extracts making various allegations over an extended period. In those circumstances, I accept the Respondent’s submissions that to find that the Amended Application includes an application to administratively review the conduct the subject of the Staff Complaint Internal Review would be procedurally unfair as it is entirely unclear on the face of the application, and by virtue of its attachments, that this is the decision the subject of the application for administrative review.

76. The Applicant may file an application pertaining to the conduct the subject of the Staff Complaint Internal Review, however, as noted above, an extension of time would be required for the Tribunal to exercise jurisdiction. That observation does not fetter the discretion of the Tribunal. Such applications, if made, will be decided on their merits.

77. I find that the application for administrative review does not include an application for administrative review of the conduct the subject of the Staff Complaint Internal Review.

Requests for documents and access

18. The Tribunal also made reference (at [23]-[38]) to various past requests made by the Applicant (Mr Kelly) “pursuant to the GIPA Act or the PPIP Act” and sought to categorise those requests by tracing through and what had transpired (my emphasis):

23    The Staff [Complaint] Internal Review [dated 17 January 2023] did not identify any breach of the Information Privacy Principles (IPP). The Staff Complaint Internal Review identified the documents considered in the context of completing the Staff Complaint Internal Review including past requests made by the Applicant pursuant to GIPA Act or the PIPP Act and states:

I have reviewed the following material which has previously been released to you:

- A decision made under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) dated 27 September 2019, concerning the July 2019 incident;

- A response to your personal information access request dated 19 December 2020, which sought details about yourself held on a UNSW complaint register;

- A decision made under the GIPA Act dated 6 November 2020, concerning your July 2020 complaint about the social media posts;

- A decision made under the GIPA Act dated 17 November 2020, concerning the July 2019 incident; and

- A decision made under the GIPA Act dated 12 October 2022, which requested, relevantly, an email sent by [an employee] concerning yourself.

This material includes the documents and communications sent to you from UNSW in response to the July 2019 and July 2020 incidents.

25.   About two months after the Staff [Complaint] Internal Review, on 20 March 2023, the Applicant emailed the Respondent’s compliance officer and stated, inter alia (the Access Request):

You mentioned a number of files mentioning me a few emails ago

Give me those files and the names of sender and recipient and date for each one. PPIP act I think…

26.   According to what is described in the privacy officer’s email described at paragraph 25 [sic] below:

1.   the Applicant in his correspondence with the Respondent’s privacy officer referenced “200 or so documents” responding to his Access Request.

2.   the Respondent’s privacy officer replied to the Access Request by indicating that he had reviewed his previous emails and could not identify one that referenced “200 or so documents” that mentioned the Applicant.

27.   The Applicant again emailed the Respondent’s compliance officer and stated the following:

You’ve refused to acknowledge my legitimate request. This is a deemed refusal.

I demand a review of your deemed refusal

Next step is IPC then NCAT.

28.   On 20 March 2023, the Applicant and the Respondent’s privacy officer also appeared to communicate with respect to the Applicant’s preparation to file an application for an internal review of the Deletion Decision. In this regard, the Applicant stated:

Your link says clearly I don’t need any specific form and I’ve made the review request …

29.   On 21 March 2023, the Applicant sent to the Respondent what is described by the Respondent’s privacy officer as the Applicant’s “information access and review requests”. According to the response to those requests, the information access and review requests made by the Applicant in addition to the Access Request were four-fold:

1.   Request related to security incident reports and specifically copies of all complaints submitted by the Applicant with the Conduct & Integrity Office of the Respondent.

2.   Complaint regarding the Staff Internal Review in that the Applicant alleged that it had not been conducted.

3.   Request for an Internal Reviewof the Deletion Decision.

4.   Request for Access to other records as per the Access Request.

30.   On 31 March 2023, the Respondent’s privacy officer replied and sought clarification of the Applicant’s information access and review requests as follows, in summary:

(1) Regarding the Security Incident Reports:

(a)    the response records that the Respondent’s privacy officer attached a file containing the Security Incident Reports that were reviewed as part of the Deletion Decision which were provided under the PPIP Act (access to personal information). The Respondent’s privacy officer described the redaction of other individual’s names given that the access request was to the Applicant’s personal information. The Respondent’s privacy officer sought confirmation that the Applicant was requesting copies of all complaints that the Applicant had submitted.

(2) Regarding the Staff Internal Review:

(a)    the Respondent’s privacy officer informed the Applicant that the Staff Internal review had been conducted and the Applicant was notified on 17 January 2023.

(3) Regarding the Request for an Internal Review of the Deletion Decision:

(a)   the Respondent’s privacy officer confirmed that a specific form is not required but that using the form does help to identify the specific conduct the subject of the complaint; and

(b)    the Respondent’s privacy officer sought confirmation that the Applicant was making an application for internal review under s 53 of the PIPP Act and that the conduct to be reviewed was the handling of the Applicant’s amendment application the subject of the Deletion Decision.

(4)   Regarding the Request for Access, the Respondent’s privacy officer stated:

(a)   As stated to you in my email to you dated 20 March, I have reviewed the previous emails that I have sent to you and cannot identify one that references 200 or so documents.

31.   Later on 31 March 2023, the Applicant:

(1)   Provided confirmation as to his requests regarding the Security Incident Reports,

(2)   Expressed dissatisfaction with the alleged conduct the subject of the Staff Internal Review,

(3)   Provided confirmation as to his request for an Internal Review relating to the Deletion Decision; and

(4)   In respect of the Access Request stated:

I sent you your own email attachment which mentioned 104 records plus several others in categories.

I’m sick of requesting this. You’re obviously stalling to protect UNSW

I’m aware that internal communications exist, about me. I’m aware that unsw would rather I not see some of these and that you will probably violate my rights under state law to see these. [Emphasis added]

32.   On 21 April 2023, after the Respondent’s privacy officer indicated he did not understand the ambit of the Applicant’s Access Request as described above, the Applicant stated in an email to the Respondent’s privacy officer:

You sent me this. 105 emails etc.

I want all of those mentioned documents, along with sender and date, in each and every case

[Screenshot of the part of the Staff Complaint Internal Review extracted at paragraph 23 above which refers to 105 emails sent from [Employee 1] UNSW email account; 10 chat message from [Employee 1] Microsoft Teams account and 58 emails from the [email protected] email account]

33.   On 27 April 2023, the Applicant emailed the Respondent’s privacy officer and stated:

Resent. PPIP Act

34.   On 27 April 2023, the Applicant forwarded to the Respondent’s privacy officer and the Information and Privacy Commission of NSW the email directly above stating:

This was ignored by [the Respondent]. I’m requesting an IPC review. If you refuse it’ll go to NCAT.

35.   On 9 May 2023, the Applicant emailed the Respondent’s privacy officer repeating the Deletion Request and Access Request. In respect of the Access Request, the Applicant stated:

I’m requesting all files related to this matter be sent to me. These include, among others, the many communications [Employee 1] has sent telling people to ignore my messages.

…

I’m requesting an internal review of your deemed refusal to send all of the above.

So, I’m requesting a review and I’m requesting a review, and I’m requesting the things again. [Emphasis added]

19. The Tribunal found as follows at [78]-[91]:

The alleged deemed refusal of the Access Request

78.   In respect of the alleged deemed refusal of the Access Request, I accept the submissions of the Applicant.

79.   I find that on 20 March 2023, the Applicant emailed the Respondent’s compliance officer and made the Access Request, which properly construed was a request to access his personal information to the extent such information was included in the documents described in the Staff Complaint Internal Review which were identified after searches were undertaken. Specifically:

1.   105 emails sent from [Employee 1] UNSW email account;

2.   10 chat message from [Employee 1] Microsoft Teams account;

3.   58 emails from the [email protected] email account.

80.   I also accept, that given the terms in which the Access Request was originally made, that it was not reasonably clear to the Respondent what was being requested. The confusion arising from the Applicant’s description of the documents the subject of the Access Request and the absence of a reference to the Staff Complaint Internal Review.

81.   However, I find that by at least 21 April 2023, the Respondent understood or should have understood that Applicant was making the Access Request pursuant to IPP 7 (s 14 of the PIPP Act) in respect of the documents listed in the Staff Complaint Internal Review. This is because the email sent by the Applicant on that date attached a screenshot of the Staff Complaint Internal Review and specifically the list of documents with the email explaining that the Applicant wanted access to these documents.

82.   According to the evidence before me as well as the submissions of the Applicant, a decision was not made by the Respondent to the Access Request. The Respondent’s representative did not dispute this allegation at the hearing.

83.   The failure to decide is, as submitted by the Applicant, a deemed refusal in respect of which, the Applicant is entitled to request an internal review.

84.   On 9 May 2023, the Applicant requested an internal review of the Respondent.

85.   The Respondent failed to conduct an internal review in respect of the Access Request and its deemed refusal.

86.   As noted above, the absence of an internal review does not, in all cases preclude jurisdiction. Section 53(6) in Part 5 of the PPIP Act makes provision for this Tribunal’s jurisdiction in circumstances where there is a failure to conduct an internal review.  However, that jurisdiction does not accrue until 60 days from the day the application for an internal review was received because it is only after the time that the failure to internally review crystallises.

87.   However, in considering these matters, it has come to my attention that the 60-day period had not expired when the Applicant initiated these proceedings on 30 June 2023. Given that his application for an internal review was made on 9 May 2023, the first day that proceedings seeking an administrative review of the Access Request was the 8 July 2023. Even if I was to accept the Amended Application as initiating these proceedings (and I do not), the Amended Application was filed a day early on 7 July 2023.

88.   The Tribunal has the power to extend a time period (see paragraph 75 above) but it does not have the power to abridge one. Abridging a time period would be a substantive expansion of the Tribunal’s jurisdiction.

89.   Apart from this timing issue, I find that the Amended Application on its face incorporated the Access Request. This is because the majority of the extracts of emails pertained to the Applicant’s Access Request as well as the references in the Amended Application to the fact that the Respondent “did not respond” in respect of the decision to be reviewed and “no response, deemed refusal” to questions related to the internal review. In the context of the communications between the Applicant and Respondent, I find that the Respondent would or should have understood this was a reference to the Access Request given its failure to respond either in deciding or conducting an internal review. There is no evidence before me that this accusation of failure to respond could pertain to any other conduct.

90.   Irrespective of those findings, the unavoidable conclusion is that the Tribunal does not have jurisdiction to administratively review the Access Request as part of the current application given that it was initiated prior to the expiry of the 60-day period. This is despite my findings, consistent with the Applicant’s contentions, that there has been a deemed refusal and an absence of an internal review.

91.   However, the Applicant may file a new application pertaining to the conduct the subject of the Access Request and seek whatever extension of time is required for the Tribunal to exercise jurisdiction. That observation does not fetter the discretion of the Tribunal. Such applications, if made, will be decided on their merits.

20. Accordingly, the Tribunal concluded in respect of the requests for access as follows (despite noting at [35] that there had been a wide request for “all files” relating to the matter by Mr Kelly):

1. Mr Kelly had made a valid request to the University for access under s 14 of the PPIP Act on 20 March 2023 ([80] - [81]);

2. The scope of that “Access Request” was only as follows (at [75], see also [81]):

a request to access his personal information to the extent such information was included in the documents described in the Staff Complaint Internal Review which were identified after searches were undertaken. Specifically:

1.   105 emails sent from [Employee 1] UNSW email account;

2.   10 chat message from [Employee 1] Microsoft Teams account;

3.   58 emails from the [email protected] email account.

3. A decision was not made by the University in response to the Access Request: [82];

4. There was therefore a deemed refusal of the Access Request in respect of which Mr Kelly was entitled to request an internal review: [83];

5. Mr Kelly made a request for internal review on 9 May 2023 in respect of his Access Request and its deemed refusal [84];

6. The Tribunal had no jurisdiction to conduct an administrative review because the period of 60 days specified in s 53(6) had not expired by the time that Mr Kelly filed his application on 30 June 2023 (or his amended application on 7 July 2023) and there was no power to abridge the time period [88]; and

7. However, Mr Kelly was entitled to file a new application “pertaining to the conduct the subject of the Access Request” (at [91]).

Second Interlocutory Decision (Kelly 2)

21. The second application, as noted above, concerned certain confidential materials filed by the University with the Tribunal relating to the First Proceedings (Confidential Materials).

22. Following a confidential hearing, Confidentiality Orders were made in Kelly 2 that disclosure to Mr Kelly of confidential material was prohibited.

23. As a result, the University was permitted to uplift the original Confidential Materials and s 58 Documents and file Amended s 58 Documents in the First Proceedings. This bundle comprised 2,259 pages, including redactions which had been confirmed pursuant to the Confidentiality Orders. The Amended s 58 Documents were provided to Mr Kelly.

The hearing

24. The substantive hearing relating to the First Proceedings took place on 18 June 2024, before me. As noted above, the decision is reserved.

The Second Proceedings (2023/00346800)

25. Mr Kelly filed another application to the Tribunal on 1 November 2023, shortly after the decision in Kelly 1.

The Application

26. The application form for the Second Proceedings was completed by Mr Kelly as follows (his words in italics):

2. LEGISLATION

This is an application under the: GIPA and PPIP Acts, many sections.

3. ORDERS SOUGHT

(1) Give documents )    as described in

(2) Delete documents )    attached

(3) Punish for misuse of my file & invasion of privacy

4. GROUNDS FOR APPLICATION

(1) Violation of GIPA Act (many)

(2) Violation of PPIP Act (many)

27. There was an attachment to the application form which comprised a document. Various screenshots were also attached. The document contained the following text:

This demand has been sent many times. I want an NCAT review of the GIPA part of it (deemed refusal of access to files and deletion of files), and I want UNSW punished for violating the ppip act (misuse of my file as described below).

This is a request under the GIPA and PPIP Acts:

1)    Send me all UNSW and/or MSS files, including e-mails, which are related in any way to the claim that I’m a criminal and/or committed a criminal act and/or had anything do with an assault and/or made threats and/or behaved threateningly.

This includes but is not limited to:

…

2) Send me all communications UNSW sent to MSS related to me.

This includes but is not limited to:

…

3) Delete all the above files and e-mails, after sending me a copy of each.

4) You have now admitted that the criminal/assault/threats etc.. claims that you’ve been using for 4 ½ years to threaten me with arrest, expel me, ban me from campus, destroy my future and push me into a suicide attempt were false, unjustified and had no factual basis. Contact everyone that was sent any of the above files and/or emails and tell them that all the claims above about assault, criminality and threats and/or threatening behaviour were false and that you were lying.

5) Re-enrol me at UNSW.

6) Nullify all my fail grades since UNSW began spreading false claims of assault in late 2019.

In other words, undo the damage to my future you’ve caused.

7) Every communication in any way implying or stating that I’m a criminal and/or committed assault and/or made threats and/or behaved threateningly is a misuse of my file and a violation of the law. It resulted in my being expelled for behaviour you have admitted didn’t happen, and multiple threats and claims of imminent arrest. This is a formal complaint about all such behaviour. I’ve also been punished for suing you and for my previous demands that you delete the claims and stop spreading them and this falls under this behaviour.

28. The Second Proceedings were dismissed under s 55(1)(c) of the CAT Act by an order of the Tribunal dated 29 January 2024 which stated, inter alia:

On 29 January 2024 the following orders and/or directions were made:

1.   The application is dismissed because Milton Kelly […] failed to appear.

Note: The Tribunal may reinstate proceedings that have been dismissed under s 55(1)(c) of the [CAT Act] if the Tribunal considers that there is a reasonable explanation for that failure to appear.

2.   Notes:

The Tribunal noted the following:

(a) The issue identified by the Tribunal at the previous case conference was whether any aspect of the applicant’s email of 25 September 2023 was a request for internal review under s 53 of the [PPIP Act].

(b) While unclear, it would appear the relevant email is that which is immediately attached to the applicant’s General Application Form. In that email there are seven (7) requests, each of which were responded to by the respondent on 19 December 2023. On 24 December 2023, the applicant responded to the respondent’s response to request number (4).

(c) While no conclusive finding was made in regard to this request or any of the other requests in the applicant’s 25 September 2023 email, it is doubtful that the applicant’s application is one over which the Tribunal jurisdiction. In the event there is jurisdiction, the respondent submitted that this application should be heard together with the other application the applicant has before the Tribunal.

29. No request for reinstatement of those proceedings was made under s 55(2) of the CAT Act.

THE THIRD PROCEEDINGS (2024/0015491)

The Application to the Tribunal

30. Mr Kelly filed another application to the Tribunal on 26 April 2024. These are the Third Proceedings. They are the proceedings to which this application by the University to dismiss relates.

The Application Form

31. The application form was completed by Mr Kelly as follows (his words in italics):

2. DECISION FOR REVIEW

… The date I was notified about the decision is: 8 April 2024

3. GROUNDS FOR APPLICATION

I am seeking a review of the decision on the following grounds:

They refused to grant my requests, in violation of the PPIP Act sections 8, 10, 11, 12, 13, 14, 15, 16, 17 and 18, and the State Records Act.

4. INTERNAL REVIEW OR OBJECTION

The decision attached was made after the agency conducted an internal review or objected to the original decision:

Yes

5. LATE APPLICATIONS

The application is lodged within the time allowed under the relevant legislation [Yes/No]

Yes

or

The reason the application is lodged outside the time allowed is:

[blank]

Attachments to the Application Form (6 April 2024 and 8 April 2024 emails)

32. Mr Kelly attached a 2 page document to the application form. It was undated, and it was not addressed to anyone in particular. I have extracted the complete text below (my emphasis), but anonymised third parties referred to:

I’m requesting the following:

All documents, including e-mails, stating or implying that I’m a criminal, have committed an assault, have made threats or behaved threateningly (I note that you’ve previously claimed that all such records were amended in Dec 2022. However, the recent s58 file contains several files which I had not been sent before and which have not been amended. I attach one such file. You are to immediately send me all other such files, then immediately delete them all).

I request a review of the following actions which were claimed to be justified in large part by the (false) claims of assault and threats against me, as well as by my legitimate demands that these claims cease:

-   the communication of “assault”, “criminal”, “threat” and “threatening” claims against me, on multiple occasions, including to people with the power to expel me.

-    All campus bans.

-    Expulsion.

-    Threats to expel me based on the false claims which had been sent to those people.

-   Threats to call police on me on multiple occasions.

-    My removal from campus on 2 occasions, which were based on the false claims that should never have been made.

-   Failure to correct the false claims which had sent to others, resulting in my expulsion.

-   The reading and blocking of my e-mails on multiple occasions.

-   The posting of a number of these e-mails for other admin, who were not the intended recipients, to see.

-   The use of my medical history in an NCAT hearing in Feb 2024, to imply I did something wrong.

-   Failure to describe contents of files to me.

-   Failure to send requested files, despite over 250 such requests under GIPA and PPIP, several fees paid and several promises to send (see attached).

-   Deletion of 5 incident reports I made about [Ms X]

33. Mr Kelly explained (and Mr Mattson confirmed) that this was the text of an email sent to the University, and received by them, on 6 April 2024. I will therefore refer to this as the “6 April 2024 email”.

34. The original 6 April 2024 email was not in evidence before me. Nor were the attachments referred to in the 6 April 2024 email (i.e. “I attach one such file” and “see attached”). The second document which accompanied Mr Kelly’s application to the Tribunal was a printout of a “screenshot” taken on a phone. It was incomplete but appeared to be an email from “Legal Office” to “me” (Screenshot). There was no visible date, or year, on the Screenshot.

35. Mr Kelly explained (and Mr Mattson confirmed) that the Screenshot was of the content of an email sent by the University to Mr Kelly on 8 April 2024. The text read:

Dear Mr Kelly

We refer to your email dated 6 April 2024.

The University has previously dealt with the request in your email to provide you with “all documents, including e-mails, stating or implying that [you are] a criminal, have committed an assault, have made threats or behaved threateningly” and we refer you to our previous response on that point. The document extracted in your email relates to an email and attachment which was sent in 2019. As set out in the report of your deletion request dated 8 December 2022, the University is unable to amend or delete emails which have already been sent, nor is it able to retrospectively amend attachments to emails. Accordingly, there is no further action items that the University can do that is within the scope of this request.

We will respond to your request for review of certain actions in due course, though please note that the University will not commence an internal review of conduct that has already been the subject of an internal review.

Directions made on 13 May 2024

36. At a case conference held on 13 May 2024, the University foreshadowed their proposed application for dismissal of the Third Proceedings. The Tribunal directed the University to file any such application by 31 May 2024 together with all evidence including statements, documents and a summary of legal arguments in relation to those issues. Mr Kelly was directed to file evidence including statements and a summary of legal arguments in relation to any such application by 7 June 2024.

37. The respondent filed written submissions and a statement of Mr Mattson (with accompanying attachments) on 31 May 2024. Those attachments included copies of the decisions in Kelly 1 and Kelly 2, submissions and a statement of Mr Mattson filed in the First Proceedings (with its accompanying attachments), a copy of the orders made in the Second Proceedings cited above, and submissions filed in the Third Proceedings.

38. The applicant sent a form of submissions to the Tribunal and Mr Mattson by email on Saturday 8 June 2024 at 10:48pm. These are discussed below in these reasons.

THE RELEVANT LAW

ADR Act

39. The ADR Act confers administrative review jurisdiction of the Tribunal.

40. Section 7 provides that an administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction. Section 9 provides that the administrative review jurisdiction is conferred if enabling legislation (here, the PPIP Act) provides that applications may be made to the Tribunal for administrative review under the ADR Act of any such decision (or class of decisions) made by an administrator.

The PPIP Act

41. Part 5 of the PPIP Act provides for the internal and administrative (or external) review of certain conduct of agencies. It provides, relevantly:

52   Application of Part

(1)   This Part applies to the following conduct –

(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.

(2)   A reference in this Part to conduct includes a reference to alleged conduct.

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 …

…   

(2)   The review is to be undertaken by the public sector agency concerned.

(3)   An application for review must –

(a)   be in writing,

(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.

…

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 1999 of the conduct that was the subject of the application under s 53.

…

(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.

CAT Act and CAT Rules

42. The guiding principle governing the role of the Tribunal is set out in s 36 of the CAT Act:

36 Guiding principle to be applied to practice and procedure

(1)  The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2)  The Tribunal must seek to give effect to the guiding principle when it—

(a)  exercises any power given to it by this Act or the procedural rules, or

(b)  interprets any provision of this Act or the procedural rules.

(3)  Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal—

(a)  a party to proceedings in the Tribunal,

(b)  an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.

(4)  In addition, 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.

(5)  However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.

43. Part 3 of the CAT Act sets out the Tribunal’s jurisdiction. It includes such jurisdiction and functions as may be conferred or imposed on it by or under the CAT Act or any other legislation: 28(1). It includes the Tribunal’s administrative review jurisdiction: s 28(2)(b).

44. Section 30 (1) of the CAT Act provides that the ADR Act provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator.

45. Section 39 of the CAT Act explains what constitutes “an application”:

39   What constitutes an application

For the purposes of this Act, an “application” to the Tribunal includes a complaint, referral or other mechanism (however expressed) by means of which enabling legislation provides for a matter to be brought to the attention of the Tribunal for a decision.

46. Part 6 of the Civil and Administrative Tribunal Rules 2014 (NSW) (CAT Rules) deals with the commencement of proceedings. Rule 24 in that Part provides relevantly:

24   Administrative Review Applications

(1)   An administrative review application must be –

(a)   in or to the effect of the approved form, and

(b)   duly completed, and

(c)   lodged at the Registry, and

(d)   accompanied by the applicable fee (if any) for the application.

(2)  An administrative review application need not specify the Division of the Tribunal to which the function of determining the application is allocated by the Act. However, if the appropriate Division is not specified or an incorrect Division is specified, a registrar may complete or alter the application form accordingly.

(3)  Unless the Tribunal grants an extension under section 41 of the Act, an application must be made—

(a)  in the case where enabling legislation specifies the period within which the application is to be made—within the period specified, or

(b)  in any other case—by the end of the default application period.

(4)  The default application period for the purposes of subrule (3)(b) is—

…

(a1) in the case of an administrative review application under section 55 of the Privacy and Personal Information Protection Act 1998 – the period of 28 days after –

(i)   if an internal review under section 53 of that Act is completed within 60 days from the day on which the application for the internal review was received by the public sector agency concerned – the day on which the applicant was notified of the result of the internal review (whichever is the later), or

(ii)    if an internal review under section 53 of that Act is not completed within that 60 day period – the day on which the 60 day period expires or the day on which the applicant was notified of the result of the review (whichever is the later) …

…

47. Sections 40 and 41 of the CAT Act provides:

40 Making of applications and appeals

An application or appeal to the Tribunal is to be made in the time and manner prescribed by enabling legislation or the procedural rules.

41 Extensions of time

(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

(2) Such an application may be made even though the relevant period of time has expired.

48. Sections 4, 7 and 16 of the CAT Rules provide:

4   Application of rules

…

(3)  These rules apply to proceedings in the Tribunal subject to any provisions of enabling legislation or a Division Schedule for a Division of the Tribunal that are applicable to the practice and procedure to be followed in proceedings of the kind concerned.

(4)  Nothing in these rules is intended to limit the application of the guiding principle referred to in section 36 of the Act when the Tribunal exercises a power given to it by these rules or interprets a provision of these rules.

7   Fixing time period

If no time is fixed by the Act, enabling legislation or these rules for the doing of any thing in or in connection with any proceeding before the Tribunal, the Tribunal may fix the time within which the thing is to be done.

8   Applications for extensions of time

An application for an extension of time made under section 41 of the Act must be made in writing unless the Tribunal dispenses with that requirement.

49. Section 55 of the CAT Act deals with the dismissal of proceedings. It relevantly provides:

55   Dismissal of proceedings

(1)   The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances –

…

(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.

The University’s submissions

50. The University submits there are two grounds for dismissal of these proceedings under s 55(1)(b) of the CAT Act.

1. The Tribunal does not have jurisdiction, because in the absence of an internal review application following the request in his 6 April 2024 email, the necessary precondition to the Tribunal’s jurisdiction under s 55 of the PPIP Act is not satisfied; and

2. The application by Mr Kelly is duplicitous, making these proceedings vexatious and an abuse of process, because:

1. the issue is to be determined in the First Proceeding listed for hearing on 18 June 2024; and

2. a similar application by Mr Kelly was dismissed in the Second Proceeding;

3. it would be an attempt to relitigate a matter that had already been determined once, constituting “powerful reasons to conclude that the second application was vexatious”: per Hayne J in D A Christie Pty Ltd v Baker [1996] VicRp 89; [1996] 2 VR 582.

51. Further to the above, the University notes that at the case conference in these proceedings before SM Mobbs on 13 May 2024:

1. Mr Kelly said he wanted files deleted. That is what the applicant seeks, and it is what will be dealt with, in the First Proceedings.

2. Mr Kelly also said he wanted the documents that were redacted and kept confidential in the First Proceedings, although that decision was not appealed.

3. Mr Kelly said that he did not need to seek an internal review.

52. The University also submits that to the extent the Request goes on to request a “review” of listed actions – and even assuming they are reviewable actions (which is not accepted) – any actions which could be considered reviewable actions within the meaning of the PPIP Act are all actions that occurred more than 6 months ago. Accordingly, even if it is assumed the email of 6 April 2024 was an internal review application (which is also not accepted), the application was made out of time on the basis that s 53(3) of the PPIP Act requires any application for internal review to be lodged within 6 months and a decision not to accept a request out of time is not reviewable by the Tribunal (Y v Director General, Department of Education and Training [2001] NSWADT 149 at [69] and BQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 64 (BQ) at [36]-[37].)

Mr Kelly’s submissions

53. Mr Kelly’s emailed his submissions on 10 June 2024. The email read as follows (extracted in full).

I was asked for input regarding the response to attempt to dismiss yet another case.

I explained this at the last hearing. It’s on documents you already have but the member refused repeatedly to look at during that hearing. She said she “couldn’t look at other cases”. I asked how would she make the decision then, and she didn’t answer.

Case 2023/00216033 has, in NCAT’s own words, been limited to deletion/alteration/production of files, ie. the s59 stuff. YOU, NCAT, ruled that it was so restricted.

My application for this case, 154941, clearly involves many other things, such as rescinding decisions, information recipients of false claims, etc, which were *specifically excluded* from 216033.

Stop wasting time and pandering to a lawyer who gets paid by the hour. Every hearing we have is more tax money straight into his bank account. This is a waste of time and tax money and making applications “because you’re allowed to” rather than “because you genuinely thing they’re true” is an abuse of process. No one is being fooled by this. Stop it.

You already have the documents you need to decide this. If the member had literally looked at her screen last hearing, rather than refusing after I repeatedly requested she do it, it would’ve saved tax money.

Milton Kelly

The hearing of this application

54. At the hearing, Mr Kelly’s primary submission was that he had not been provided with documents. This is despite the plethora of requests for things (other than documents) in the 6 April 2024 email. He said he was requesting “the documents” and they had never been provided to him. He said he made numerous requests. He repeatedly said that the University, or Mr Mattson, was “lying”. He said they had provided some documents in the s 58 materials (relevant to the First Proceedings) that he had only seen for the first time recently and this clearly showed they had been hiding things from him. And if there weren’t other documents, they had obviously deleted them, which was “a breach of the PPIP Act and a criminal offence under the State Records Act”. He was clearly upset, because he shouted at the Tribunal, repeatedly, words to the effect:

I want the documents. Give me the f***ing documents. I’ve been asking for them for 5 years. Over and over again. Give them to me.

55. There was some confusion regarding the existence of a request for internal review. Mr Kelly submitted to the Tribunal that a request for internal review was not required. He said the Tribunal website said that. When asked where it said this, he conceded that it did not. He then said it was on the website of the Information and Privacy Commissioner. Nothing was produced to evidence this. In any event, as is explained below, a request for internal review is required for administrative review of conduct under the provisions of the PPIP Act.

56. The Tribunal sought more clarity from Mr Kelly regarding whether the 6 April 2024 was a fresh request to the University. Despite saying earlier it related to previous requests, he said it was a new request.

Consideration

57. An application to the Tribunal ought not be decided in a summary way other than in the clearest of cases and with exceptional caution. In considering an application for summary dismissal, the substantive applicant’s case must be taken at its highest. It therefore falls to the University, who seeks the dismissal, to establish that Mr Kelly’s case is so obviously untenable that it cannot succeed, is manifestly groundless, or discloses a case which the court is satisfied cannot proceed: General Steel Industry v Commissioner for Railways (1964) 112 CLR 125; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256.

58. The Tribunal has power to dismiss proceedings under s 55(1)(b) of the CAT Act which it considers to be “frivolous or vexatious or otherwise misconceived or lacking in substance”. As explained in BDK v Department of Education ad Communities [2015] NSWCATAP 129 (BDK) and the cases referred to at [60] – [65], the power to dismiss proceedings under s 55(1)(b) may encompass applications which are:

1. misconceived – i.e. connoting a misunderstanding of legal principle;

2. lacking in substance – i.e. connoting an untenable proposition of law or fact;

3. frivolous – instituted with the intention of annoying or embarrassing the person against whom they are brought; or

4. vexatious – brought for a collateral purpose and not for the purpose of adjudication on the issues to which they give rise.

59. “Vexatious” would also encompass an abuse of process. As noted in Health Care Complaints Commission v Kirby [2019] NSWCATOD 47 at [7] – [11]

7. … if the proceedings are found to be an abuse of process, in my view s 55(1)(b) of the NCAT Act would permit the Tribunal to dismiss the proceedings on the ground that they are vexatious. The term “vexatious”, which is not defined by the NCAT Act, probably extends to proceedings found to be an abuse of process …

8.   Support for this proposition can be found in a number of decisions which have characterised proceedings found to amount to an abuse of process (in the sense used by Dr Kirby) as also being vexatious. For example, in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175, French CJ said at [33] that abuse of process principles may be invoked to prevent attempts to litigate that which should have been litigated in earlier proceedings as well as attempts to re-litigate that which has already been determined. His Honour cited with approval the decision of Mason CJ, Deane and Dawson JJ in Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 in which their Honours said that “proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings” (emphasis added).

9.   In Ridgeway v R (1995) 184 CLR 19 at 74–5; 129 ALR 41 at 83, Gaudron J made the following remarks:

Abuse of process cannot be restricted to “defined and closed categories” because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of “abuse of process” is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are “seriously and unfairly burdensome, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment”. (Footnotes omitted, emphasis added)

10.   The decision of Crocker v Toys ‘R US (Australia) Pty Ltd (No 3) [2015] FCA 728 provides a further example. Reeves J at [9] commented on the interrelationship between the terms “abuse of process” and “vexatious” proceedings:

11.   These expressions [scandalous, vexatious or frivolous] can be used either separately, or in conjunction, or interchangeably, with the expression “abuse of the process of the court”:. … A “vexatious” proceeding is one without foundation, which cannot succeed, or is brought for an ulterior and collateral purpose: …. It might also describe proceedings that are “seriously and unfairly burdensome, prejudicial or damaging …”. (Footnotes omitted, emphasis added)

60. In BDK the Appeal Panel said at [66] (my emphasis):

The intent of the provision, as we see it, is to seek to give the Tribunal a broad power to deal with abuses of its processes, and for them to be interpreted and applied in a power which captures any kind of abuse of process, that can reasonably be seen to fall within their compass. While ‘misconceived’ and ‘lacking in substance’ may be seen as relatively specific terms, we think a flexible, purposive interpretation can be adopted in determining whether proceedings are ‘frivolous’ or ‘vexatious’, conscious always of the gravity for an applicant or plaintiff of summary dismissal of proceedings.

61. A similar view was expressed by the Court of Appeal in Health Care Complaints Commission v Hill [2022] NSWCA 270 at [32] – [33]:

Section 55(1)(b) permits the Tribunal to summarily dismiss proceedings where there is no reasonable prospect of success, or where there is otherwise an abuse of process.

62. An absence of jurisdiction to deal with an application is a clear case where summary dismissal of an application is appropriate. As I explained to Mr Kelly, the Tribunal cannot exercise power that it does not have in dealing with such an application: Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [23] to [31], [40], [42] to [44] and [62] to [80].

63. This Tribunal’s jurisdiction to conduct an administrative review requires there to be an administratively reviewable decision designated by enabling legislation: s 30(1) and (3) of the CAT Act and s 9 of the ADR Act. Despite the breadth of the guiding principle in s  39 of the CAT Act, an “application” can only be before the Tribunal if the enabling legislation provides for a matter to be brought to the attention of the Tribunal for decision. That is the case even though a person may have completed the procedure for submitting an application for administrative review pursuant to rule 24 of the CAT Rules, including by paying an application fee. If the enabling legislation does not permit the matter to be brought to the attention of the Tribunal, the application will be of no effect: Y v Director General, Department of Education and Training [2001] NSWADT 149 at [74].

64. The PPIP Act is the enabling legislation. Section 55(2) provides that the Tribunal has the power to conduct an administrative review of “conduct” of the public sector agency that was the subject of an internal review under s 53 of that Act. This involves a “two-step process”: BQ at [17]:

17. In short, the Privacy Act provides for a two-step review process. A person aggrieved by certain conduct, as defined by s 52(1), may apply to the relevant agency for internal review of that conduct within six months of becoming aware of the conduct in question. If the person is not satisfied with “the findings of the review or the action taken by the agency in relation to the application”, the applicant may apply to the Tribunal for a review of the conduct the subject of the application for internal review.

65. The requirement for an internal review exists because the Tribunal is not a decision maker at first instance. That is the role of the University. The Tribunal only has jurisdiction to review an administratively reviewable decision (as defined) of the University as a public sector agency.

66. In order to be an “internal review request”, the document or documents relied upon by an applicant must, upon their face, reasonably convey to the agency (here, the University) that an application for an internal review is sought: PC v University of New South Wales (GD) [2005] NSWADTAP 72 at [78]. There needs to be material that can be understood by the agency, fairly read, as connecting the relevant “conduct” (being the action or circumstances of concern) to an information protection principle, whether or not the principle itself is actually specified by the application: CYL v YZA [2017] NSWCATAP 105 at [58]. The surrounding context and contents of an applicant’s communication must reasonably convey to the respondent agency that a statutory right is being invoked: Y v Director General, Department of Education & Training [2001] NSWADT 149 at [1].

67. It is then the conduct which was identified in the request for internal review (to the agency) that grounds the application to the Tribunal.

68. It was agreed by Mr Kelly that the 6 April 2024 email was addressed to the University, and not to NCAT. Therefore, it is first necessary to review the 6 April 2024 email to determine whether there was, as a matter of fact, an application for internal review under s 53 of the PPIP Act which can ground an application to the Tribunal for administrative review.

69. In that regard, the 6 April 2024 email (extracted in full at paragraph 32 above) had several elements:

1. a request for deletion;

2. a request for documents; and

3. a request for review of listed actions, including the reframing of requests previously made.

70. In respect of the request for deletion:

1. At its highest, this was a request for amendment under s 15 of the PPIP Act.

2. It did not request a review of conduct by the agency.

3. This was not an “application for internal review” under s 53 of the PPIP Act.

4. The terms of the request mirror the Deletion Request, which is the subject of the First Proceedings.

5. As this matter is already before the Tribunal, and it did not comprise an application for internal review under s 53, this part of the application is misconceived. The administrative review jurisdiction of the Tribunal is not engaged.

71. In respect of the request for documents and files:

1. At its highest, this was a request for access under s 14 of the PPIP Act, although the PPIP Act refers to access to personal information and not documents or files.

2. This was not an “application for internal review” under s 53 of the PPIP Act. It did not request a review of conduct by the agency.

1. As this was not a request for internal review under s 53, this part of the application is misconceived. The administrative review jurisdiction of the Tribunal is not engaged.

2. The scope was limited by words which reflects the wording of the Deletion Request in the First Proceedings. Those proceedings have been heard. Documents within the scope of the Deletion Request were provided to Mr Kelly, although they are limited due to the Confidentiality Orders made. To seek to reagitate this matter is vexatious and/or an abuse of process.

72. In respect of the request for review of actions, as listed in the email:

1. This was a request for internal review under s 53 of the PPIP Act.

2. It was, however, a request for internal review only to the extent that the actions were relevant to conduct that was reviewable under the PPIP Act.

73. However, in respect of the request for internal review of that conduct:

1. The Tribunal has no jurisdiction to conduct an administrative review in circumstances where the period of 60 days specified in s 53(6) had not expired by the time the application to the Tribunal was filed, (and the agency has not issued a decision in response within that period) as the Tribunal has no power to power to abridge the time period. Put another way, if no internal review finding is issued, an application to the Tribunal can only be made once the “trigger” has occurred, i.e. “once 60 days has elapsed”: EMF v Cessnock City Council [2021] NSWCATAD 83 at [133]-[134]; Kelly 1 at [88]; BKM v Sydney Local Health District [2015] NSWCATAD 87 at [20].

2. In respect of any conduct that was not previously the subject of the Staff Complaint Internal Review Request and the Staff Complaint Internal Review Decision, there was therefore no valid application to the Tribunal and therefore the jurisdiction of the Tribunal is not engaged. This was because the 60 day period in s 53(6) had not expired before the application was filed, at which time no internal review findings had been received from the University. This is clear from the University’s response on those matters on 8 April 2024 (my emphasis):

We will respond to your request for review of certain actions in due course, though please note that the University will not commence an internal review of conduct that has already been the subject of an internal review.

3. In respect of any conduct that was previously the subject of the Staff Complaint Internal Review Request and the Staff Complaint Internal Review Decision, Kelly 1 specifically defined the required scope of the application to the Tribunal, the need for the claim to be precisely identified, and the requirement for an extension of time to be applied for under s 41 of the CAT Act and considered on its merits. Mr Kelly has not done that. Nor has he applied for an extension of time under s 41 of the CAT Act. He said that the application was lodged within time. I find no basis for the exercise of any discretion under s 41.

74. I therefore find that the application is misconceived.

Abuse of Process

75. It is clear from the background above that Mr Kelly has made repetitive and inconsistent claims to the University and applications to the Tribunal:

1. Mr Kelly is aware that the First Proceedings are dealing with the Deletion Request. The First Proceedings have been heard. The Deletion Request is squarely raised again in the 6 April 2024 emails. It is duplicitous to raise that again. It is an abuse of process.

2. To the extent Mr Kelly is seeking again access to “all files” or “all records”, these requests have now been said by him to be made anew. For the reasons noted above, requests for documents does not enliven any jurisdiction of the Tribunal. It is not an internal review application to the agency under s.53.

3. He then says he has been making the same request repeatedly for 5 years. There are a range of requests and responses referred to above in respect of both the GIPA Act and the PPIP Act, and to documents relating to this matter being provided in respect of the First Proceedings. If Mr Kelly is seeking to get access to material that is confidential, as confirmed by orders previously made by the Tribunal, the Third Proceedings is misconceived and also vexatious. In this respect, the Third Proceedings would be brought for a collateral purpose. The Tribunal’s processes cannot be used by Mr Kelly to seek that material other than by appealing the decision in Kelly 2, which he has not done.

4. Mr Kelly requests that documents be provided and then deleted. He also alleges, in contradiction to his own request, that a deletion of documents by the University is in breach of the State Records Act. In any event, there is nothing in the PPIP that requires the deletion of records by an agency; that is obvious from the wording of s 15 of the PPIP Act.

76. Mr Kelly has not considered the previous decisions of the Tribunal. He has sought to conflate a range of issues, restate questions previously asked, frame things as new requests, request reviews by the Tribunal and/or the University, add on new things, and ultimately require the Tribunal to work through and untangle them all. As noted in NR v Department of Education and Training [2010] NSWADTAP 75 at [21]:

… It is often the case that complainants have concerns with the respondent agency’s behaviour that go well beyond the parameters of the Privacy Act. The Tribunal should avoid allowing the case to become a platform for the airing of general grievances with the way the agency conducts itself. Regrettably, we have now seen many cases in the Tribunal where the review applicant has been set on pursuing a wide agenda of concerns off the back of the often relatively-narrow issues that have engaged the privacy jurisdiction of the Tribunal.

77. There is nothing specific in the legislation which required Mr Kelly to seek reinstatement of the Second Proceedings rather than filing a fresh application. Nor is there any argument regarding res judicata or estoppel where the substantive claim has not been determined.

78. However, that position will change upon the issue of a decision in the First Proceedings in respect of the Deletion Request and the Deletion Decision.

79. Further, as noted by Justice Hayne (as he then was) in DA Christie Pty Ltd v Baker [1996] VicRp 89 [1996] 2 VR 582 at :

… The prospect of there being successive applications… suggests not only the possibility that there may be conflicting decisions given with the inevitable harm that follows from that but also that a respondent to such an application ay be vexed by successive applications… It is not fanciful to conclude that the making of successive applications may well engender a belief in a respondent that the applicant had, in effect, hawked the application from judge to judge until a judge had been found who was willing to accede to the applicant’s arguments. The vice of such a result is apparent.

80. In the above circumstances, I find that the application by Mr Kelly is an abuse of process.

Non-disclosure orders

81. At the hearing of this matter on 27 June 2024, I observed that there was a non-disclosure order previously made under s 64(1)(a) of the CAT Act which anonymised the name of Mr Kelly in these proceedings. I asked Mr Kelly if he sought such an order. He was equivocal. I said that I did not propose to remove that non-disclosure order.

82. However, when making orders that the decision in this matter was reserved, I also ordered that the s 64(1)(a) (CAT Act) order be revoked. In doing so, I noted for the benefit of the parties that for the purpose of preparing these reasons, it was necessary for me to consider the interlocutory decisions in the First Proceedings referred to above (ie. Kelly 1 and Kelly 2). He was not anonymised by name in those proceedings. Accordingly, an order under s 64(1)(a) is of no utility.

83. Mr Kelly has also sent ongoing, numerous and repeated emails to the Tribunal, Mr Mattson, 60 Minutes, the ABC and the NSW Ombudsman. I ascertain that he is therefore not concerned about the confidentiality of these proceedings. For example, he has stated in these emails:

My requests have been 3:

1) send me all relevant files

2) delete all false claims (and stop using them to justify actions like expulsion and campus ban

3) punish unsw for its misuse of my file…

…

I’ve made requests for these things many dozens of times over many months. Each one was copied to NCAT And the press do you would be unable to deny you’d gotten them but unsw is doing that anyway.

Supreme Court is the next step. If you think that ALL these documents, submitted to the sc, will result in a win for you, then let’s go. I can just resubmit the claims in any case to NCAT. Your own legislation says I DO NOT NEED an internal review request before NCAT…

If NCAT refuses to hear all the points I put on my application I’ll just immediately resubmit them as well as appealing to NCAT. … I’m not going to ever stop my fight for justice.

Conclusion

84. The net effect of the course of conduct pursued by Mr Kelly is a demonstration by him that the Third Proceedings are properly, in a legal sense, to be characterised as misconceived, vexatious, and as an abuse of process. For completeness, even if there were some element of the application that were to enliven the jurisdiction of the Tribunal (which I have found there is not) but an extension of time were required, I would not exercise a discretion to allow an extension of time under s 41 of the CAT Act having regard to the history and my findings above.

85. The correct and preferable decision is therefore to grant the University’s application for dismissal under s 55(1)(b) of the CAT Act.

Orders

86. I make the following orders:

1. The proceedings are dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW).

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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: 25 July 2024