Anderson v University of Sydney

NCAT Administrative and Equal Opportunity|2018-09-24

Solicitors: Self Represented - Applicant Heesom Legal -Respondent File Number(s): 2018/0001692

REASONS FOR DECISION

These reasons should be read in conjunction with the primary decision published on 27 August 2018 under citation Anderson v University of Sydney [2018] NSWCATAD 196. (Anderson No 1). The matter relates to a decision under the Government Information (Public Access) Act 2009 (the GIPA Act).
The respondent wrote to the Divisional Registrar of the Tribunal on 3 September 2018 following publication of the primary decision. The purpose of that correspondence was to alert the Tribunal to a perceived inconsistency between the reasons for decision and the decision itself.
The specific concerns related to two items. The first item concerned an inconsistency in the order relating to document 24 having regard to the reasons of decision concerning that document. The respondent illustrated the point by both the reasons (as they related to document 24) and the approach that the Tribunal took in respect of a similar document (document 26).
The second item concerned an apparent lack of reference to one document in the reasons. This issue appears to have been amplified by an error or omission in the published reasons. In Anderson (No 1) the orders are listed at the end of the reasons for decision and also on the coversheet. Order (6) and the conclusion of the reasons states: (6) the decision of the respondent is otherwise affirmed.

The request for amendment

The respondent's solicitor identified that for document 24 the Tribunal sought to prevent the release of information that would identify the email's author. The document (in the form initially withheld by the GIPA decision) comprises an email from an individual to the University concerning the activities of Dr Anderson. Whilst the Tribunal redacted the author's name and contact identifiers, no order was made (under Order 4) in respect of the body of the email. The respondent identified that other emails as part of documents had been wholly or partially redacted in the Tribunal's reasons due to the issue of constructive identification of the author from the email contents.
The respondent's solicitor also raised an issue that neither the reasons for decision or the orders addressed document 27. Document 27 is another email from an individual to the University raising concerns about the applicant. The email, which is the total contents of document 27, also appears within or as part of another document - document 28. The respondent submitted that as document 28 has been withheld so too should document 27. The lack of any specific reference to document 27 in the reasons or the orders was raised as an issue for attention.
A request was made that the decision was suitable to amened under the 'slip rule' due to the inconsistency and that the 'omission' be corrected. The respondent's correspondence was copied to the applicant.

The amendment provisions

The respondent referred to the power to amend under s 63 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act). The respondent also referred to the 'slip rule' provisions in the Uniform Civil Procedure Rules 2005.
The respondent referred to the analysis and approach of the Tribunal in Place v Department of Finance, Services and Innovation (No 2) [2017] NSWCATAD 21 as authority for the requested amendments concerning document 24.
In respect of document 27 the respondent relied on the approach set out by the Appeal Panel of this Tribunal in Rekrut and Scott v Champion Homes Sales Pty Ltd; Champion Homes Sales Pty ltd v Rekrut and Scott (No 2) [2018] NSWCATAP 64.

The legislative provisions

Section 63 of the NCAT Act provides: 63 Power to correct errors in decisions of Tribunal (1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member. (2) If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal's decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct. (3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where: (a) there is an obvious clerical or typographical error in the text of the notice or statement, or (b) there is an error arising from an accidental slip or omission, or (c) there is a defect of form, or (d) there is an inconsistency between the stated decision and the stated reasons.
In my view the respondent's request concerning document 24 falls within the provision of s 63(3)(d). In respect of document 27 an amendment arising under s 63(3)(b) or (c) may be applicable, or it may be that no amendment is required.
In Place the Tribunal observed the following about the wide scope of the slip rule at [9] - [12]: 9. Section 63 is a statutory version of the common law "slip rule", the purpose of which is to avoid injustice by permitting the rectification of errors or omissions in the orders or reasons of a court or tribunal: Batagol & McGill v Monk [2000] VSC 48, [17]. The test for applying it has been held to be whether, if the matter had been drawn to the tribunal's attention, a mistake or omission would have been corrected at once: Riga v Peninsula Home Improvements [2000] VCAT 56. The following passage from R v Cripps; ex parte Muldoon [1984] QB 686, 695 has often been referred to: [The slip rule] is surprisingly wide in scope. Its primary purpose is akin to rectification, namely to allow the court to amend a formal order which by accident or error does not reflect the actual decision of the judge. But it also authorises the court to make an order which it failed to make as a result of the accidental omission of counsel to ask for it. It even authorises the court to vary an order which accurately reflects the oral decision of the court, if it is clear that the court inadvertently failed to express the decision which it intended. 10. In its primary connotation, the slip rule applies when the error, mistake, omission or slip is a matter as to which no real difference of opinion exists. It can even apply if there are different possible "corrections", provided that the choice between them is not a matter of controversy or substance or require the exercise of an independent judgment: Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385, 390 - 392. 11. There is no time limit on the making of such a correction, but it has been held that it "should be made without delay": Constantinidis v MMMMM Pty Ltd [2010] VCAT 1811, [26]. In the present case the application was lodged promptly and without delay. It was instituted because Dr Place took the view that the quotation of the paragraph from the email in para 173 of the published reasons for decision entitled him to disregard Order 5. 12. Section 63(3) sets out four examples of matters requiring correction in the text of a notice of decision or a statement of reasons for decision, including an "omission" or "an inconsistency between the stated decision and the stated reasons". In my view the present application falls within either or both of those examples, as the inclusion of the quoted paragraph in para 173, and the omission of the words "Not for publication", can be seen as inconsistent with Order 5. The quoted paragraph in para 173 should be replaced by the words "[Not for publication]" in the open reasons and the orders should be amended accordingly. In the confidential reasons the words "Not for publication" should be inserted immediately before the quoted passage in para 173.

Consideration

Document 24 is clearly in the terms as set out in the respondent's letter of 3 September 2018. It appears that the document and specifically the email contents were incorrectly assessed by the Tribunal, in that the totality of document 24 was not identified from the confidential exhibit.
I agree that some passages of the email would allow constructive identification due to the history between the author of the email and the applicant. For that reason the parts of the email that in my view 'constructively identify the author' should be appropriately withheld. Consistent with the existing orders for document 24 and reasons expressed in the second last sentence of par 90 of Anderson No 1, the email should be redacted as necessary. I set out below the specifics of the redactions.
Document 27. This document contains similar information to document 28. Document 28 was referred to in the decision as constituting two types of material capable of classification under the GIPA Act. The information was both legal profession privilege (LPP) material (for which there is a conclusive presumption against disclosure) and also material whereby sufficient weight attracts to the personal information provision of the public interest considerations against disclosure so as to override any general consideration in favour of disclosure.
I note that document 28 includes in its entirety the information from document 27. On one assessment there is a lack of specific reference to document 27 in the reasons. However I note overall that some of the documents are considered by reference to the classification of the documents, that being how they are identified and assessed for consideration under the GIPA Act. By this I mean that some documents are dealt with collectively by the nature of the basis that they are withheld from release, such as many of the documents for which LPP was successfully claimed.
In any event when the reasons concerning document 28 are considered, and noting the final order of the reasons (that the decision is otherwise affirmed), the decision to the extent necessary captures the position in respect of document 27. This is because through that analysis it can be ascertained from the reasons, that is as document 27 had initially been withheld by the respondent, then that (initial) decision to withhold document 27 is affirmed by the Tribunal.
Document 28 contains document 27, and document 28 was withheld by the respondent and this was affirmed by the Tribunal. In addition the residue of the initial decision of the respondent was affirmed by the Tribunal in order 6. In this regard order 6 captures or includes all documents not otherwise specifically referred to.
Such an analysis might not appear straightforward from the published decision. Clearly the respondent saw fit to identify the absence of explicit reasons as a matter of some issue and referred to the situation as an 'omission'. This position may have been exacerbated by the absence of order 6 from the coversheet. The decision as submitted contained that order but during the publication process it appears to have been removed.
I note that the case referred to by the respondent, Rekrut and Scott v Champion Homes Sales Pty Ltd; Champion Homes Sales Pty ltd v Rekrut and Scott (No 2) [2018] NSWCATAP 64 dealt with an error arising in circumstances as set out in s-63 (3) (a) of the NCAT Act. Whilst the absence of Order 6 from the coversheet is a matter that can be corrected by s 63 (3) (a) I am not sure if that provision applies to document 27 explicitly.
In my view the correct approach would be to insert the following words at the conclusion of paragraph 92 of the reasons. 'As document 27 is captured by document 28 this finding also applies to document 27.' The basis for this insertion would be s 63 (3) (c) of the NCAT Act.

Procedural Fairness

The respondent's correspondence identified the matters above and requested that the Tribunal give them attention. The respondent suggested that it could assist the Tribunal with further submissions in writing or at a hearing, but that in their view a hearing could be dispensed with under s-50 (2) of the NCAT Act. The section provides: 50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except: (a) in proceedings for the granting of leave for an external or internal appeal, or (b) in connection with the use of any resolution processes in proceedings, or (c) if the Tribunal makes an order under this section dispensing with a hearing, or (d) in such other circumstances as may be prescribed by the procedural rules. (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account.
I note that the applicant has been copied into the correspondence and that on 13 September 2018 the Divisional Registrar wrote to the parties advising them of the issue with order 6, and that the Tribunal would shortly consider the matters in the respondent's request.
No communication had been received from the applicant as at 14 September 2018 at which time I proposed to deal with the matter without a hearing.
However for procedural fairness grounds and noting the terms of s 50 (3) the applicant must be given the opportunity to make submissions on the dispensing with a hearing ground. The Divisional Registrar wrote to the applicant along those lines on 14 September 2018, copied to the respondent. I note that the respondent had already submitted that a hearing was not necessary.
The applicant responded later on 14 September 2018 advising that he had nothing to add to the matter in reply to the matters posed by the 13 and 14 September correspondence. For that reason I proceeded to deal with the matter having regard to the matters raised by the respondent, in the manner as set out above.

Decision

I have taken the views of the parties into consideration and have determined to decide the matter by dispensing with a hearing.
For the reasons set out in the consideration above I make the following orders.

Orders 1. A hearing in respect of the application under s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) is dispensed with under s 50(2) of that Act. 2. I direct the Registrar: 1. to alter the text of the reasons for decision and orders made on 27 August 2018 by inserting in order 4: 1. "That document is to be released with the following redacted from the email contained within document 24: the 10th, 11th and 12th words of paragraph 2 (redacted), the second sentence of paragraph 3 (redacted), paragraph 4 (redacted) and paragraph 5 (redacted)." 1. I direct the Registrar: 1. to alter the rest of the reasons for decision and orders made on 27 August 2018 by inserting at the conclusion of paragraph 92 the following words: 1. "As document 27 is captured by document 28 this finding also applies to document 27."

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 September 2018

At a glance

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Judgment (10 paragraphs)

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Legislation Cited (1)

Cases Cited (7)

Cited By (1)