CJN v University of Sydney

NCAT Administrative and Equal Opportunity|2016-06-15

Solicitors: University of Sydney Office of General Counsel (Respondent) File Number(s): 1610025

Background

In these reasons the names of private individuals have been anonymised so as to preserve the privacy of their personal affairs. The Applicant is referred to as CJN. At relevant times CJN was a student at University of Sydney ("the University" or "the Respondent").
CJN alleged that the Respondent's conduct contravened several of the Information Protection Principles ("IPPs") of the Privacy and Personal Information Protection Act 1998 ("the PPIP Act").
The University submitted that this Application is outside the jurisdiction of the Tribunal as there was no valid application for internal review as required by the PPIP Act.
The matter came before me for hearing on 15 June 2016. On that occasion I agreed with the University's argument and I dismissed the matter for want of jurisdiction. The issue was also raised about whether Professor Christopher Jordens had been correctly named as a respondent to the matter. CJN has requested written reasons for that decision. These reasons are provided in response to that request.

The correct parties

The Application names both the University and Professor Jordens as respondents, and alleges dissemination of personal information by Professor Jordens in breach of various IPPs. However, the PPIP Act is concerned primarily with conduct of a public sector agency. Section 53 of the PPIP Act provides that a person who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct.
Section 55 of the PPIP Act provides for administrative review of conduct by this Tribunal. Section 55(1) provides that if a person who has made an application for internal review under section 53 is not satisfied with the outcome of that review they may apply to the Tribunal for "an administrative review … of the conduct that was the subject of the application under section 53". That is, they can seek review of the conduct of a public sector agency. The expression "public sector agency" is defined in section 3 of the PPIP Act. For further discussion see Pearce v AQO [2015] NSWCATAP 162.
The University contends that Professor Jordens is not a public sector agency for the purposes of the PPIP Act and that the Tribunal has no jurisdiction under the PPIP Act against individuals who are not themselves public sector agencies. I agree with that submission. It follows that Professor Jordens should be removed as a party to this matter.
I order that Professor Christopher Jordens is removed as a party to this matter.

CJN's complaint

By letter dated 18 March 2015 headed ("the Complaint Letter") the Applicant identified a number of issues. The Complaint Letter commenced: I am lodging complaint on unlawful discrimination against, and false allegations and claims.
CJN identified the following broad Areas of concern ● Incident with my former supervisor ● Supervision issues with my former supervisor ● Sexual discrimination against me underpinned my being denied access to 2012 APR ● Unlawful discrimination instituted by former supervisor, maintained in 2013 and 2014
While it is dated 18 March 2015 it appears that CJN forwarded the Complaint Letter to Professor Glenn Salkeld, Head, School of Public Health; Associate Dean, Sydney Medical School by email dated 29 Apr 2015. Professor Salkeld acknowledged receipt of the complaint by an email to CJN which was sent the following day.

Applicable legislation

As noted above, section 55 of the PPIP Act provides for administrative review of conduct by this Tribunal. The Tribunal's jurisdiction arises in relation to conduct that was the subject of an application under section 53. Section 53 provides: 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. ... (3) An application for such a review must: (a) be in writing, and (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.
Therefore, the Tribunal's jurisdiction arises only where there has been an application for internal review of conduct pursuant to section 53.
In in PC v University of New South Wales (GD) [2005] NSWADTAP 72 the Administrative Decisions Tribunal Appeal Panel stated at paragraph [28]: 28 ... In order to constitute an application for internal review, the document or documents relied upon by the applicant, must upon their face, reasonably convey to the respondent agency, that an application for internal review is sought. ... 29 There is no power in the Tribunal to dispense with the requirement for an application for internal review, pursuant to section 53 Privacy and Personal Information Protection Act 1998. It follows, accordingly, that if the pre-requisite to trigger the jurisdiction of the Tribunal is absent, the Tribunal has no jurisdiction to entertain the appellant's application for review, there being no reviewable decision, nor a failure on the part of the respondent to respond to a request for an internal review.
The documents relied upon by the applicant are to be assessed objectively. The Tribunal does not insist " 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": PC v University of New South Wales [2005] NSWADT 157 at paragraphs [9] - [14]. In Y v Director-General, Department of Education [2001] NSWADT 149 the Administrative Decisions Tribunal's President stated at paragraph [16]: 16 … I should make it clear that I do not see it as essential that there be express reference in correspondence with agencies to the statute under which application is made. There will be cases where it is apparent from the surrounding context, such as oral interactions between the applicant and the agency, or the internal contents of the letter, that a statutory right is being invoked. But in cases where an applicant proceeds through an informed agent (such as a legal practitioner or a union) it is reasonable for an agency ordinarily to expect to find a direct reference to any statutory right that is being invoked.

Chronology of events following CJN's complaint

On 1 May 2015 Ms Tanja Protschky, Manager Case Management in the University's Human Resources area advised CJN: I'm contacting to let you know that Professor Salkeld has referred your complaint on to me, as Case Management now has carriage over any harassment or discrimination complaints made against staff ... We have engaged an external investigator, Ms Sarah Heesom, who will commence a preliminary assessment ... Sarah will be in touch with you to further discuss the information you have provided. … I will, however, remain the University's contact person in respect of coordination of the overall complaint. …
On 4 May 2015 Ms Heesom advised CJN: I have been engaged by the University of Sydney to conduct a preliminary assessment of your complaint of harassment and discrimination against Professor Simon Chapman. The purpose of my preliminary assessment is to: - obtain all relevant information from you, and your view on what action could reasonably be taken to resolve the complaint; and - make a recommendation to the Case Management Group on whether the complaint should be referred to a misconduct or other University process.
CJN wrote to Ms Heesom by letter dated 18 May 2015. CJN referred to a meeting that she had with Ms Heesom on 15 May 2015 and provided additional information regarding her 'complaint on inappropriate conduct, discrimination and harassment'. She also provided information regarding her allegation of dissemination of false information and false claims about her.
Ms Heesom responded to CJN by email dated 20 May 2015 and acknowledged receipt of the additional information. Ms Heesom indicated her understanding of the allegations regarding dissemination of false information and requested that CJN provide additional information in support of the allegations.
CJN provided further information by emails dated 12 June 2015, 19 June 2015 and 1 July 2015.
By letter dated 4 August 2015 Ms Protschky advised CJN that she had accepted Ms Heesom's assessment that there was insufficient evidence of unlawful discrimination or harassment against CJN to warrant referral of the complaint to the relevant misconduct process.

The University's case on jurisdiction

The University submits that this Application is outside the jurisdiction of the Tribunal. This submission is based on the view that CJN did not lodge an application for internal review of conduct pursuant to section 53 of the PPIP Act. The University contends that her complaint related to unlawful discrimination and related matter and did not relate to matters arising under the PPIP Act. It submitted that CJN did not make any mention of the PPIP Act or the information protection principles and did not seek a review of conduct or any remedies provided for by the PPIP Act.
CJN's Complaint letter was sent to the Head of the School of Public Health; and the University took it to be a complaint of sexual harassment and discrimination. Ms Heesom was engaged to undertake a preliminary assessment in order to determine whether an investigation was warranted. The University submits that the additional material that CJN provided, including material regarding allegations about dissemination of false information, was provided as part of that process. The University submitted that none of that material constitutes an application for internal review.

CJN's case on jurisdiction

CJN referred to her email of 29 April 2015 to Glenn Salkeld in which she stated: I am lodging formal complaint on unlawful discrimination against me; and false allegations and claims made against me and disseminated.
Mr Pearson, council for CJN conceded that the Complaint letter did not make any reference to the PPIP Act but submitted that this did not prevent CJN seeking an internal review at a later time.
Mr Pearson referred to the 18 May 2015 letter that CJN sent to Ms Heesom in which she provided information regarding her allegation of dissemination of false information and false claims about her.
He specifically referred to the following assertions made in that letter which, he submitted, allege inappropriate dealings with CJN's personal information by Professor Jordens. He submitted that these complaints go directly to the University's obligations under section 12 of the PPIP Act.
Mr Pearson submitted that Ms Heesom's email of 20 May 2015 acknowledged that the particulars had changed. He further submitted that it is clear from Ms Protschky's letter dated 4 August 2015 that the University had not dealt with these allegations but had bundled them into the discrimination complaint.
Mr Pearson did not dispute that section 53 of the PPIP Act requires that a complaint be made to the agency or that CJN raised her allegations of dissemination of false information and false claims with Ms Heesom. However, he submitted that it was reasonable for CJN to assume that she was to deal with Ms Heesom and not with the Respondent. This should not bar CJN from enlivening the Tribunal's jurisdiction.

Consideration

The jurisdictional issue in this matter turns on whether or not the correspondence that CJN sent to the University or to Ms Heesom, when viewed objectively, satisfies the requirements of section 53 of the PPIP Act.
Having considered that correspondence, it is clear that the context in which CJN was dealing with Ms Heesom was in relation to a harassment and discrimination complaint. It is clear that CJN made allegations and raised issues which could also be dealt with under the PPIP Act but that is not the context in which they were raised. I am satisfied that when viewed objectively, she was not seeking review under the PPIP Act when she raised these issues.
CJN was advised by both Ms Protschky and Ms Heesom that Ms Heesom's engagement was for a preliminary assessment in relation to a harassment and discrimination complaint. As noted above, on 1 May 2015 Ms Protschky advised CJN that she would "remain the University's contact person in respect of coordination of the overall complaint".
Clearly, Ms Heesom was an agent for the University for the purposes of the discrimination and harassment complaint but she was not an agent for the University for the purposes of the privacy matters. In my view it was not reasonable for CJN to assume that Ms Heesom's role extended further than a preliminary assessment in relation to the harassment and discrimination complaint. The appropriate way for CJN to have raised the privacy allegations as a complaint under section 53 of the PPIP Act would have been to do so to Ms Protschky.
In the circumstances, I do not think that CJN's correspondence can be regarded as an application under section 53 of the PPIP Act. CJN did not make any mention of the PPIP Act or the information protection principles and did not seek a review of conduct or any remedies provided for by the PPIP Act. On their face, the documents relied upon by CJN did not reasonably convey to the Respondent that an application for internal review was sought. That being the case, the Tribunal does not have jurisdiction to deal with it.
The correct outcome is that the matter is dismissed for want of jurisdiction.

Orders 1. Professor Christopher Jordens is removed as a party to this matter. 2. The application is dismissed. 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: 03 August 2016

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Judgment (10 paragraphs)

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