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Norkin v University of New England

Norkin v University of New England

Case [2023] NSWCA 194 22 August 2023

Statutory Construction

Administrative Law

Employment Law

Statutory Interpretation

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Norkin v University of New England [2023] NSWCA 194
Hearing dates: 2 August 2023
Decision date: 22 August 2023
Before: Leeming JA at [1];
Basten AJA at [78];
Griffiths AJA at [79]
Decision:
1. Application for leave to appeal dismissed.
2. Either party may apply within 14 days for orders as to costs in this Court and/or in the Common Law Division, by filing and serving short submissions identifying the orders sought, such submissions not to exceed three pages, with the other side to respond by filing and serving short submissions not exceeding three pages within seven days thereafter.

Catchwords:
HUMAN RIGHTS – Privacy and Personal Information Protection Act 1998 (NSW) – personal information collected by university – application for postgraduate study by overseas student – university participated in Simplified Student Visa Framework – whether university collected personal information on behalf of Commonwealth – whether university collected personal information in order to form a view on likelihood of applicant being granted a student visa – whether direct relationship between lawful purpose of collecting personal information and one of university’s functions or activities – whether lawful purpose required express authorisation or merely meant something not prohibited
APPEALS – leave to appeal – where decisions favourable to university in NCAT and in the Supreme Court were based on a misapprehension of facts – where that misapprehension not corrected by university until hearing in Court of Appeal – where concurrent hearing granted on basis of misapprehension – significance of misapprehension of facts for grant of leave and making of special costs orders

Legislation Cited:
Privacy and Personal Information Protection Act 1998 (NSW), ss 4, 8-19, 21, 53, 55, 69(1)
Supreme Court Act 1970 (NSW), s 101(2)(r)
Uniform Civil Procedure Rules 2005 (NSW), r 51.15
University of New England Act 1993 (NSW), ss 4, 6
Civil and Administrative Tribunal Act 2013 (NSW), ss 80, 83
Evidence Act 1995 (NSW), s 56(2)
Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 42.1

Cases Cited:
ALZ v SafeWork NSW [2017] NSWCATAP 51
Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29
DQU v University of New England [2020] NSWCATAD 226
DQV v University of New England [2021] NSWCATAP 208
Norkin v University of New England [2022] NSWCATAP 146
Norkin v University of New England [2023] NSWCA 26
Taikato v The Queen (1996) 186 CLR 454; [1996] HCA 28
Tarrant v Australian Securities and Investments Commission [2015] FCAFC 8; 317 ALR 328
Vice-Chancellor Macquarie University v FM [2005] NSWCA 192
WL v Randwick City Council [2007] NSWADTAP 58

Texts Cited:
Wade and Forsyth, Administrative Law (7th ed, 1994)

Category: Principal judgment
Parties: Anton Norkin (Applicant)
The University of New England (First Respondent)
Civil and Administrative Tribunal of NSW (Second Respondent – Submitting Appearance)
Representation:
Counsel:
A Norkin (in person)
S J Free SC, C Trahanas (First Respondent)
R Seiden SC, D Levi (Amici Curiae)
Solicitors:
Sparke Helmore (First Respondent)

File…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Norkin v University of New England

Details

AGLC: Norkin v University of New England [2023] NSWCA 194
Case: [2023] NSWCA 194
Decision Date: 22 August 2023

CaseChat Overview and Summary

The Court of Appeal of New South Wales considered an application for leave to appeal by Mr Norkin against the University of New England. Mr Norkin, an overseas student, had applied for postgraduate study with the University, which participated in the Simplified Student Visa Framework. The dispute concerned whether the University, in collecting Mr Norkin's personal information, had done so on behalf of the Commonwealth and for the purpose of forming a view on the likelihood of him being granted a student visa, thereby potentially engaging privacy obligations under the *Privacy and Personal Information Protection Act 1998* (NSW).

The central legal issues before the Court of Appeal were whether the University collected Mr Norkin's personal information on behalf of the Commonwealth and whether it did so in order to form a view on the likelihood of him being granted a student visa. Further, the Court had to determine whether there was a direct relationship between the lawful purpose of collecting the personal information and one of the University's functions or activities, and whether "lawful purpose" required express authorisation or merely meant something not prohibited. The Court also considered whether a misapprehension of facts, which had influenced earlier decisions in the NSW Civil and Administrative Tribunal and the Supreme Court, warranted the grant of leave to appeal.

The Court of Appeal ultimately dismissed the application for leave to appeal. The reasoning focused on the interpretation of the relevant provisions of the *Privacy and Personal Information Protection Act 1998* (NSW) and the factual matrix of the case. The Court found that the University's collection of personal information was for its own purposes in assessing the application for postgraduate study, and not on behalf of the Commonwealth or for the specific purpose of assessing visa eligibility. The Court also determined that the earlier misapprehension of facts, while noted, did not provide a sufficient basis for granting leave to appeal in the circumstances.

The Court ordered that the application for leave to appeal be dismissed. It further provided a mechanism for the parties to apply for costs orders within 14 days, requiring short written submissions from each party.

Orders

Orders of the court

1. Application for leave to appeal dismissed.

2. Either party may apply within 14 days for orders as to costs in this Court and/or in the Common Law Division, by filing and serving short submissions identifying the orders sought, such submissions not to exceed three pages, with the other side to respond by filing and serving short submissions not exceeding three pages within seven days thereafter.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Norkin v University of New England [2023] NSWCA 194

Most Recent Citation

High Court Bulletin [2024] HCAB 1

Cases Citing This Decision

Webb v Port Stephens Council [2025] NSWCATAD 191
Citation 1 (Para 50)

…In Norkin v University of New England [2023] NSWCA 194 (“Norkin Decision”) the NSW Court of Appeal stated, most relevantly:…
FTD v NSW Ambulance [2024] NSWCATAD 283
Citation 2

…ousing [2005] NSWADT 58 Nasr v State of New South Wales (2007) 170 A Crim R 78; [2007] NSWCA 101 Norkin v University of New England [2023] NSWCA 194 OD v Department of Education and Training (GD) [2005] NSWADTAP 74 Robinson v Commissioner of Police [2014] NSWCATAP 73 Saggers v Environment Protection Authority [2013…
FZZ v Department of Climate Change, Energy, the Environment and Water [2024] NSWCATAD 131
Citation 3 (Para 108)

…ion reasonably necessary for that purpose. Neither question can be addressed without identifying the purpose”: Norkin v University of New England [2023] NSWCA 194 ( Norkin ) at [36].…
High Court Bulletin [2024] HCAB 1
Citation 4

…[2023] NSWCA 194…

See all citing cases →

Cases Cited

Norkin v University of New England [2023] NSWCA 26
Citation 1 (Para 2)

…and me, has previously explained why most of the 14 proposed grounds of appeal did not warrant a grant of leave: Norkin v University of New England [2023] NSWCA 26 at [11]. However, we regarded the summons seeking leave as giving rise to one question of principle. We said at [8]-[9]:…
Norkin v University of New England [2022] NSWSC 819
Citation 2

…ction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2022] NSWSC 819 Date of Decision: 24 June 2022 Before: Davies J File Number(s): 2021/224913…
DQU v University of New England [2020] NSWCATAD 226
Citation 3 (Para 22)

…rother sought external review in NCAT pursuant to s 55. After a hearing, the tribunal determined to take no action: DQU v University of New England [2020] NSWCATAD 226. For present purposes, the critical reasoning was at [119]-[121]:…
Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29
Citation 4 (Para 77)

…itigant, even one with a law degree, Mr Norkin is not entitled to recover any professional costs: Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29. Both parties may if they wish be heard further as to the exercise of the discretion as to costs (including as to the proper order for costs of the p…
Tarrant v Australian Securities and Investments Commission [2015] FCAFC 8
Citation 5 (Para 26)

…r Member had made an error of fact in applying s 8: at [32]-[33]. His Honour, relying on Tarrant v Australian Securities and Investments Commission [2015] FCAFC 8; 317 ALR 328 at [100(e)], observed, correctly, that where the issue is whether the facts as found fall within a statutory question, there is ordinarily…
Tarrant v Australian Securities and Investments Commission [2013] AATA 926
Citation 6 (Para 26)

…e an error of fact in applying s 8: at [32]-[33]. His Honour, relying on Tarrant v Australian Securities and Investments Commission [2015] FCAFC 8; 317 ALR 328 at [100(e)], observed, correctly, that where the issue is whether the facts as found fall within a statutory question, there is ordinarily a question o…
WL v Randwick City Council [2007] NSWADTAP 58
Citation 7 (Para 61)

…That conclusion aligns with a body of decisions in NCAT: see ALZ v SafeWork NSW [2017] NSWCATAP 51 at [76]-[82] and WL v Randwick City Council [2007] NSWADTAP 58 at [45]-[47].…
Vice-Chancellor Macquarie University v FM [2005] NSWCA 192
Citation 8 (Para 33)

…In Vice-Chancellor Macquarie University v FM [2005] NSWCA 192 at [20] Spigelman CJ, writing for this Court, identified a “clear bifurcation” between the information protection principles in ss 8-11, which applied to the collection of personal information, and those in ss 12-19, which applied to the holding of perso…
Taikato v The Queen [1996] HCA 28
Citation 9 (Para 2)

…t require express authorisation by primary or secondary legislation. It suffices if it is not forbidden by law: at [57]-[61]. Taikato v The Queen (1996) 186 CLR 454 applied.…

Legislation Cited

Uniform Civil Procedure Rules 2005 (NSW) 36.16, 42.1, 51.15
4 mentions (from Para 2)
Privacy and Personal Information Protection Act 1998 (NSW) 4, 8
3 mentions (from Para 1)
University of New England Act 1993 (NSW) 4, 6
3 mentions (from Para 23)
Civil and Administrative Tribunal Act 2013 (NSW) 80, 83
2 mentions (from Para 25)
Evidence Act 1995 (Cth) 56(2)
1 mention (from Para 74)
Freedom of Information Act 1982 (Cth)
1 mention (from Para 73)
Government Sector Audit Act 1983 (NSW)
1 mention (from Para 31)
Migration Act 1958 (Cth)
1 mention
Migration Regulations 1994 (Cth)
1 mention (from Para 73)
Supreme Court Act 1970 (NSW) 101(2)(r)
1 mention (from Para 2)

Medium Neutral Citation:	Norkin v University of New England [2023] NSWCA 194
Hearing dates:	2 August 2023
Decision date:	22 August 2023
Before:	Leeming JA at [1]; Basten AJA at [78]; Griffiths AJA at [79]
Decision:	1. Application for leave to appeal dismissed. 2. Either party may apply within 14 days for orders as to costs in this Court and/or in the Common Law Division, by filing and serving short submissions identifying the orders sought, such submissions not to exceed three pages, with the other side to respond by filing and serving short submissions not exceeding three pages within seven days thereafter.
Catchwords:	HUMAN RIGHTS – Privacy and Personal Information Protection Act 1998 (NSW) – personal information collected by university – application for postgraduate study by overseas student – university participated in Simplified Student Visa Framework – whether university collected personal information on behalf of Commonwealth – whether university collected personal information in order to form a view on likelihood of applicant being granted a student visa – whether direct relationship between lawful purpose of collecting personal information and one of university’s functions or activities – whether lawful purpose required express authorisation or merely meant something not prohibited APPEALS – leave to appeal – where decisions favourable to university in NCAT and in the Supreme Court were based on a misapprehension of facts – where that misapprehension not corrected by university until hearing in Court of Appeal – where concurrent hearing granted on basis of misapprehension – significance of misapprehension of facts for grant of leave and making of special costs orders
Legislation Cited:	Privacy and Personal Information Protection Act 1998 (NSW), ss 4, 8-19, 21, 53, 55, 69(1) Supreme Court Act 1970 (NSW), s 101(2)(r) Uniform Civil Procedure Rules 2005 (NSW), r 51.15 University of New England Act 1993 (NSW), ss 4, 6 Civil and Administrative Tribunal Act 2013 (NSW), ss 80, 83 Evidence Act 1995 (NSW), s 56(2) Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 42.1
Cases Cited:	ALZ v SafeWork NSW [2017] NSWCATAP 51 Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29 DQU v University of New England [2020] NSWCATAD 226 DQV v University of New England [2021] NSWCATAP 208 Norkin v University of New England [2022] NSWCATAP 146 Norkin v University of New England [2023] NSWCA 26 Taikato v The Queen (1996) 186 CLR 454; [1996] HCA 28 Tarrant v Australian Securities and Investments Commission [2015] FCAFC 8; 317 ALR 328 Vice-Chancellor Macquarie University v FM [2005] NSWCA 192 WL v Randwick City Council [2007] NSWADTAP 58
Texts Cited:	Wade and Forsyth, Administrative Law (7th ed, 1994)
Category:	Principal judgment
Parties:	Anton Norkin (Applicant) The University of New England (First Respondent) Civil and Administrative Tribunal of NSW (Second Respondent – Submitting Appearance)
Representation:	Counsel: A Norkin (in person) S J Free SC, C Trahanas (First Respondent) R Seiden SC, D Levi (Amici Curiae) Solicitors: Sparke Helmore (First Respondent)
File…