VZ v University of Newcastle

[2008] NSWADT 178

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
VZ v University of Newcastle [2008] NSWADT 178

DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
VZ

RESPONDENT
University of Newcastle

FILE NUMBERS:
083006

HEARING DATES:
26 February 2008

SUBMISSIONS CLOSED:
26 February 2008

DATE OF DECISION:
19 June 2008

BEFORE:
Wilson R - Judicial Member

LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Privacy and Personal Information Protection Act 1998

CASES CITED:
GA v Commissioner of Police [2005] NSWADTAP 38

TEXTS CITED:

APPLICATION:
Jurisdiction

MATTER FOR DECISION:
Preliminary matter

REPRESENTATION:
APPLICANT
In person
RESPONDENT
K Davis, solicitor

ORDERS:
The application is dismissed for want of jurisdiction.

Reasons for Decision:

REASONS FOR DECISION

1. The applicant commenced these proceedings by filing an application in the Tribunal Registry on 08 January 2008. This document in form was an application made pursuant to the Privacy and Personal Information ProtectionAct 1998 (NSW). It was accompanied by a set of documents supporting the application. The respondent submits that the Tribunal does not have jurisdiction to entertain this application, as the applicant has not taken the appropriate steps required by the legislation to confer jurisdiction, under that legislation, upon the Tribunal. For the reasons developed hereunder the point is perhaps a little wider than this. The parties agreed to file written submissions and have the issue determined on the papers so filed.

2. The primary jurisdictional question for the Tribunal in all matters is whether an enactment has provided that an exercise of administrative power may be performed or reviewed by the Tribunal. In the former situation the Tribunal has original jurisdiction, whilst the latter situation involves a decision being made at first instance, under a relevant enactment, by an administrator or an administrative body (see sections 37 and 38 of the Tribunal’s enabling legislation). The secondary jurisdictional question is whether there are any procedural steps that must be taken before an applicant may commence proceedings in the Tribunal. The point taken by the respondent is basically that internal review must be sought before an applicant may commence proceedings in the Tribunal pursuant to the provisions of the Privacy and Personal Information Act 1998. This point is correct in law. However, the first jurisdictional question is also material to a determination of the jurisdictional issues arising in these proceedings.

3. According to the materials before the Tribunal, the applicant was a student at the respondent University. Sometime prior to 28 September 2005 the applicant submitted to the respondent a number of grievances that he had arising from his relationship with the University. The way in which this was done is not shown by the evidence. On 28 September 2005, Professor Hogarth, on behalf of a Grievance Enquiry Team, wrote to the applicant requesting further information and clarification of the grievances which the applicant had (exhibit 1). This letter enclosed an interim report, which contained details of the grievances in issue as the Grievance Enquiry Team believed them to be. There were three grievances in number although in essence they all concerned the provision of appropriate academic supervisors in relation to studies that the applicant had embarked upon. It would be a fair inference from this exhibit that the matters complained of by the applicant related to his academic supervisors. The evidence does not show that the applicant provided any replies to this letter although, of course, he may well have done so.

4. It should be noted that this interim report also contained statements that the Grievance Enquiry Team had reference to identified medical reports concerning the applicant. How these reports were obtained by the Team is not shown in the evidence.

5. On 12 December 2005 Professor Hogarth wrote to the applicant again (exhibit 2). This letter enclosed the final report by the Grievance Enquiry Team dealing with each of the three grievances that had been noted in the interim report mentioned above. Consequently, this report again dealt with issues concerning the appointment of appropriate academic supervisors in relation to the applicant’s studies. The letter from Professor Hogarth also advised the applicant of his rights to appeal directly to the Vice-Chamcellor under the respondent’s Grievance Policy.

6. By letter dated 30 December 2005 the applicant wrote a letter to the respondent addressed to one Nicholas Saunders (exhibit 3). Mr. Saunder’s position within the University structure is not shown by the evidence. In this letter the applicant stated as follows: “I request an internal review in relation to my two student grievance reports dated the 28 September 2005 and the 12 December 2005 as they are contradictory and not correct”. The applicant argued in his written submissions to the Tribunal that this document was an application for internal review under privacy legislation.

7. By letter dated 18 January 2008 Messrs Whitelaw McDonald, solicitors and attorneys advised the applicant that the writer of the letter, possibly a Mr or Ms Whitelaw, was involved with the applicant’s grievance matter in 2005 (exhibit 4). This person, it seems, chaired the Grievance Enquiry Team that was then enquiring into the applicant’s grievances.

8. On 08 January 2008 filed the abovementioned application in the Tribunal (exhibit 5). In section 7 of that application the applicant stated that the respondent had contravened an information protection principle and that he was still considering whether there had been a contravention of a health privacy principle. When providing information as to how this contravention occurred the applicant stated: “refer to documents dated 28 September 2005 and 12 December 2005” to which he added “Note: this also includes provisions set out in the PPIP Act NSW 1998”. He also identified relevant principles that appear to be references to principles in the Privacy legislation. It is quite clear that this application ex facie purported to be an application to the Tribunal made by reason of alleged contravention of the Privacy and Personal Information protection Act 1998 (NSW).

9. However, it is also quite clear that the subject matter of the application to the Tribunal was in fact the grievances the applicant made to the University in 2005 and, implicitly perhaps, the respondent’s conduct in dealing with these grievances (as described in exhibits 1, 2 and 4).

10. Insofar as this application is an endeavour to bring an appeal to this Tribunal against the respondent’s decision as to the applicant’s academic, or student, grievances, it is incompetent in the sense that the Tribunal does not have jurisdiction to entertain such matters. The correct procedure is to bring an appeal to the Vice-Chancellor pursuant to the respondent’s Grievance Policy. Whilst exhibit 3 is clearly an endeavour to have a review conducted by the respondent of the applicant’s academic grievances, this does not alter the situation in relation to the Tribunal’s jurisdiction in any way.

11. It is of course possible that, during the handling of the applicant’s student grievances, the Grievance Enquiry team could have acted in such a way so as to breach a privacy principle. Insofar as the application to the Tribunal is read this way, and on the assumption that this is a correct reading, the precise point made by the respondent, that there has been no application for internal review, squarely arises (Privacy & Personal Information Protection Act 1998, section 53(3)). The respondent has focussed its submissions on this aspect.

12. It is not possible for the Tribunal to find that a combination of exhibits 1, 2 and 3 suffice to show that the applicant by his letter dated 30 December 2005 sought an internal review of any privacy grievances. There are no references in these three exhibits to any relevant infringing conduct and there are no references to any privacy principles that the applicant alleges were breached. The only way that these documents can be read is that they amount to an application by the applicant for a review of his student grievances, which were academic in nature and which did not involve in any way allegations that the respondent had breached privacy legislation. There is no reference to privacy law in any documents prior to the application to this Tribunal.

13. It is trite law that before commencing review proceedings in this Tribunal in relation to a breach of privacy law, an applicant must first apply to the agency concerned to review the alleged breaches (GA v Commissioner of Police [2005] NSWADT AP 38 at paragraphs 10 and 14). The applicant has not taken this pre-requisite step, even if it be accepted that the respondent has in fact breached privacy law in fact during the grievance process. Of course, no finding is here made that any such infringement did in fact occur.

14. Consequently, the only decision open to the Tribunal on this evidence is that the Tribunal does not have jurisdiction to entertain the application filed by the applicant in the Tribunal’s Registry on 08 January 2008 (exhibit 5).

Orders

The application is dismissed for want of jurisdiction.