PC v University of New South Wales

[2005] NSWADT 157

CITATION:	PC v University of New South Wales [2005] NSWADT 157
DIVISION:	General Division
PARTIES:	APPLICANT PC RESPONDENT University of New South Wales
FILE NUMBER:	053071
HEARING DATES:	18/05/2005
SUBMISSIONS CLOSED:	05/18/2005
DATE OF DECISION:	07/08/2005
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	Jurisdiction - Privacy - information protection principle - contravention of
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Privacy and Personal Information Protection Act 1998
CASES CITED:
REPRESENTATION:	APPLICANT In Person RESPONDENT N Sharp, barrister
ORDERS:	Orders made on 18 May 2005: 1. Application for review dismissed; 2. Respondent’s application for costs reserved.

1 This is an application by the respondent to dismiss the review application filed on 3 March 2005, for want of jurisdiction. The review application seeks external review by the Tribunal of conduct of a public sector agency being the respondent, the University of New South Wales, under the Privacy and Personal Information Protection Act 1998.

2 The review application identifies several items of conduct with which the applicant is aggrieved and the application asks for a public apology for the release of personal information, access to requested personal information and compensation for damages caused, and contains an attachment. The precondition the Act sets for the making of applications of this kind to the Tribunal is found in s 53. It requires that the applicant first give the public sector agency an opportunity to respond to the matters of concern. There is a detailed procedure set out in s 53, including quite detailed requirements that fall upon the agency.

3 Obviously the purpose of that provision is to encourage the resolution of disputes of this kind at local level between the agency said to be responsible for the misconduct, and the applicant. So that is a fundamental premise of this legislation. I might say that it is quite typical of legislation that has to do with the conduct of government agencies or administrative agencies. Normally in this Tribunal we are dealing with situations where the agency has made a decision, called ‘a reviewable decision’. Generally speaking a person adversely affected by a reviewable decision must first seek internal review of that decision by the agency before it can be exposed to scrutiny here.

4 We see the same thinking reflected in the regulation of public sector agencies with respect to conduct that might infringe the privacy legislation. So it is really a fundamental idea of the Australian legal environment when it comes to certain classes of decisions and conduct by bodies (at least in the public sector) that they be given this opportunity. The same idea is reflected in other branches of the work of this Tribunal, for example, in the equal opportunity area a person cannot bring a complaint to the Tribunal until they have gone off to the state body, the Anti-Discrimination Board, which deals with discrimination complaints. So that body seeks to resolve the complaint, essentially in a private manner.

5 Even in an area as prosaic as shopping centre disputes, the tenant and landlord must first go to mediation with a specialised government agency called the Retail Tenancy Unit before they can come here. So in this Tribunal we do not have normally any capacity to deal with matters as the first body to look at them. Almost always there is some procedure that requires the matter to be attended to somewhere else before it comes here.

6 The applicant contended that s 73 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) allowed the Tribunal to deal with her review application even if there had been no internal review by the agency. Section 73 deals with how the Tribunal is to behave once a matter gets here after going through the proper channels to reach the Tribunal. We can deal with the matter free of technicality and without regard to legal forms, et cetera: as required by s 73.

7 The applicant contended that she had in fact requested an internal review, by way of a letter dated 28 November 2004; and the agency had failed to complete the review in the period required by the Act, with the result that she was entitled to apply to the Tribunal. The question is: does this letter constitute an application for internal review for the purposes of s 53.

8 After setting out the above background, at hearing the Tribunal continued as follows.

9 HIS HONOUR: It is the case as Ms Sharp (for the agency) has explained that we do not insist in the Tribunal – and this in a sense reflects the point you [the applicant] are putting to me – that people write chapter and verse in their letter when requesting a review of an agency’s conduct – the name of the Act, the name of the section and refer to information protection principles. But normally you would expect to see that most of the letters that agencies get do do that but sometimes they do not. We have allowed matters to proceed here which rely on forms of communication to the agency which are less than perfect in mentioning the Act.

10 Obviously if the agency gets a letter that does not mention the Act, does not mention information protection principles and the like, does not seek formal remedies (as was the case with the letter of 28 November 2004), then it may be that it is never seen by the agency as being the kind of application that fits under s 53.

11 The further concern I have got and I have only heard what you have said from the bar table, PC, is that it is not at all apparent to me that on 28 November 2004 you yourself intended this to be an application for internal review under s 53 of the Act. It seems to me if an applicant comes in here and says my application for internal review was letter X, the least you would expect is for them to assert, is that this was intended by me to be an application for internal review under s 53 of the Act.

12 If you look at the letter, it seems to me that it is nothing more than a letter which expresses a grievance, clearly, over the distribution of emails and it does request the University's formal position. But that, it seems to me, is hardly enough even then to trigger the Act as it might apply to the one matter you have raised. If you look at s 53, the University has got to make all sorts of decisions and one of them is to make sure it does not put anyone on the case who is somehow affected by a conflict of interest.

13 That is roughly what subsection (4) says, and then it has got to undertake an enquiry which has as its object the question of whether any of the steps referred to in subsection (7) are to be taken. It would, I think, to some extent be guided in its judgment on the matters raised in subsection (7) by what the person puts to them in the letter, what are they asking for.

14 It seems to me that the factors that are subjective to you and factors that involve an objective scrutiny of this letter, could not reasonably allow the Tribunal to conclude that this letter was a trigger letter for the purpose of s 53.

15 All I can do today is simply suggest to you that you furnish the University of New South Wales immediately with an application pursuant to s 53. For that purpose I presume you can more or less attach or rely upon a lot of the contents of the application for review to the Tribunal; and once they have had the opportunity to deal with it and if you are dissatisfied with the way they deal with it, you should be able to come back here. I say all those things in general, I have not looked at questions of time limits and that sort of thing.

16 The other point you raised is that the application for review made to the Tribunal should have been treated by the University of New South Wales as an application for internal review. It seems to me that that is an outcome that can only be achieved really by consent of the parties. That is, if they had come in here early on as they may have, I am not privy to what discussions went on, but if they had come in and said, look, this is out of time – it is not out of time, it is outside jurisdiction, we will take it away, we will treat it as the basis of an application under 53, yes, that might have dealt with the matter. But that has not happened in this case.

17 It seems to me there has got to be, at this point in this case, some clear understanding on the part of the agency that it is now in a s 53 process and there are time lines and so on in 53. The best I can suggest is that you lodge either the substance of this application for review with a covering letter or a slightly revised document having the same contents as the application for review. You lodge that with the University at the earliest possible opportunity and the date of its lodgement presumably is when time commences to run. If you look at subsection (6) it says, the review basically is to be completed within 60 days from the day in which the application was received.

18 I am satisfied on the basis of today's submissions that that precondition is not satisfied and I have no choice but to dismiss this application for want of jurisdiction.

19 The respondent applied for costs. Directions were made in that regard.

Order

1. Application for review dismissed.

2. Respondent’s application for costs reserved.