EJX v The University of Newcastle

NCAT Appeal Panel|2023-12-08

Introduction

This appeal concerns the conduct of the University of Newcastle (the Respondent) in connection with the use of the personal information of the Appellant.
The Appellant by application in the Tribunal on 1 August 2021 sought review of the conduct of Professor 1 which she says amounts to a breach of her privacy. The application was made following an internal review by a third-party internal reviewer on behalf of the Respondent under s 53 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act).
The conduct the Appellant complaint of and which formed the basis of that internal review application, was: Use of my personal information without my consent by [Professor 1], failure to protect my personal information, rejection on resolving the matter.
By decision of the Tribunal on 25 August 2023 (the Decision), the Tribunal dismissed the application and ordered that no further action be taken in the matter.
The Appellant appeals from this Decision. Central issues in contention are the conclusions of the Tribunal as to what was the use or purpose for which the information said to be private was collected and whether or not the Appellant was aware that changes were to be made to the persons to be her supervisors on or prior to 22 February 2018. In our view, these matters do not raise questions of law and leave to appeal is required.
For the reasons which follow, we have decided to refuse leave to appeal and dismiss the appeal.

Notice of Appeal

Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that any internal appeal may be made 'as of right on any question of law, or with the leave of the Appeal Panel on any other grounds'. Accordingly, where a ground of appeal relies upon an alleged error of fact only, leave to appeal is required.
The general principles in which leave to appeal should be granted under s 80(2)(b) of the NCAT Act has been stated by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [84].
The Appellant is self-represented, The Appellant puts forward six grounds of appeal, which we address in turn below. She has filed lengthy, detailed, well expressed written submissions in chief and in reply with careful and precise references to the significant evidence that was before the Tribunal. We have considered all of this material. She has also addressed us at length orally, taking us to the key parts of the evidence. Thereby, she has ably put forward all that could be advanced in support of her appeal.
As the Appellant is self-represented, we will follow the principles set out in Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at [12] In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent.

The Tribunal erred in findings (at [95], [98]) that the Respondent's conduct did not breach the provisions under ss 9, 10, 11, 12, 13, 14, 16, 17, or 18 of PPIP Act, despite the conduct occurring prior to 21 Feb 2018. Therefore, it erred in finding that 'the issue concerning damages does not arise.', and further it erred at findings (at [111]).

The relevant paragraphs of the Decision referred to in this ground are as follows: 95 On the evidence before me, for all the reasons set out above, I have not found that the respondent's conduct breaches of any of ss 9, 10, 11, 12, 13, 14, 16, 17 or 18 PPIP Act. … 98 As I have not found any breaches by the respondent, the issue concerning damages does not arise. In any event, there was no medical evidence or other evidence that would have enabled me to make a finding as to damages. The mere assertions of EJX to the effect that as a result of the respondent's alleged breaches she has suffered damage including loss of expected income she would have earned if she had successfully completed her PhD, is not sufficient evidence. … 111 To the extent EJX was requesting I make orders under s 72(3) CAT Act, that the respondent contravened an order of the Tribunal to produce all materials under s 58 by a particular date (although not expressly stated or requested), I would not grant such a request as I consider the respondent was ultimately compliant with its obligation to produce and I accept that the non-disclosure at an earlier time was inadvertent.
The Appellant's submission in support of this ground appears to be encapsulated in the opening written submissions at paragraph 9(i) as follows: (i) At para [34] and [49] of the Decision, the primary member has identified that the relevant law requires the Tribunal under PPIP Act, s 55 to administratively review the conduct which has been complained of, and to then determine whether or not that conduct was conduct which amounted to a breach. However, the member has failed to apply this law in this proceeding where she has asked the wrong question and has considered the conduct in a timeframe outside of the time that the conduct complained of has occurred.
The way in which the Appellant frames this issue suggests that a question of law is involved as to whether or not the Tribunal failed to apply the law or has asked the wrong question by failing to consider that the conduct complained of was alleged to have occurred prior to 22 February 2018 when by email the Appellant was advised of the inclusion of Professor S as a supervisor.
The Appellant's submissions go on to dispute findings of fact which we deal with below. We rely upon our reasons in respect of ground 2 for rejecting these submissions.
We are not satisfied that the Tribunal failed to apply the law correctly or that the Tribunal asked the wrong question when considering whether or not there was a breach of the PPIP Act in respect of the conduct which has been complained of. In particular, the finding of the Tribunal as to the purpose of the collection of the private information at [58] is an answer to the conduct complained of prior to 22 February 2018.
Accordingly, we reject this ground of appeal.

The Tribunal erred in findings (at [23], [60], [63], [77]) that 'EJX was aware that Professor S was to be a co-supervisor of her PhD', that 'EJX required Professor S to be a co-supervisor in order to use the data of Prof S' and that 'EJX consented to the inclusion of Prof S on the change form'. These are inconsistent with the finding (at [62]) that EJX did not in the period 5 to 21 Feb 2018 have a conversation with the Respondent about changes to the form to include Prof S, and did not consent to further changes being made after she had signed it.

The relevant paragraphs of the Tribunal's Decision need to be considered in full. They are as follows: 23 From at least 13 April 2018, EJX started to engage with Professor S both via email and in person as one of her supervisors for the purposes of her PhD. The email correspondence demonstrates EJX acting in a way consistent with Professor S being a co-supervisor of her studies. EJX accepted in cross-examination at the hearing that Professor S had the underlying data which was required for the project EJX was working on for her PhD and so her involvement was necessary. . . . 60 While some of the documentary evidence (in particular emails from Professor 1) suggests that EJX consented to the inclusion of Professor S on the change form, EJX denied that she gave consent to the amendments to the change form. She denied any discussions with Professor 1 or any other employee of the respondent to the effect that an amendment needed to be made to the change form. I accepted this evidence particularly in the face of the absence of evidence about this issue from the respondent and/or in particular Professor 1. . . . 62 I am satisfied on the balance of probabilities that EJX did not in the period 5 February to 21 February 2018, have a specific or detailed conversation with Professor 1 or another employee of the respondent about the need for a further alteration to the change form to include Professor S as a co-supervisor. I am satisfied that EJX did not expressly consent to the further changes being made to the change form to add Professor S as a co-supervisor after she had already signed it and submitted the change form. 63 However, I find that EJX was aware that Professor S was to be a co-supervisor of her PhD and that by 22 February 2018, Professor S had in fact been included in the change form with EJX's knowledge. EJX did not complain about the amendment expressly brought to her attention in the 22 February 2018 email. EJX required Professor S to be a co-supervisor in order to use the data of Professor S and by at least April 2018, EJX was corresponding with Professor S about the data and the work on her thesis. This indicates that EJX had consented to Professor S being her co-supervisor whether or not she had consented to the physical changes on the change form to reflect the co-supervision. . . . 77 As noted above, I do not accept that EJX did not know that Professor S was to be her co-supervisor. The steps taken by EJX following receipt of the 22 February 2018 email (notably, not making any complaint about it at that time and subsequently corresponding with Professor S and sharing with Professor S her thesis materials) indicate she had consented to the change even if she did not realise that meant a form would be completed to note that change. The further amendment to include Professor S in respect of a 10% supervisory load was required in order for EJX to be granted approval to have Professor S as a co-supervisor and to enable EJX to use the data of Professor S. EJX conceded in cross-examination that she required that data and it is clear on the evidence that EJX knew Professor S was her co-supervisor. . . . 85 I have already found that EJX was not aware prior to 22 February that the change form had been altered to include Professor S nor did she provide express consent to the change to the form. However, she did know Professor S was to be a co-supervisor.
The central contention of the Appellant in this ground which also covers complaints made in the subsequent grounds of appeal can be summarised in the following propositions: 1. The Appellant did not know prior to 22 February 2018 that Professor S would be a co-supervisor; 2. The Appellant did not required Professor S to be a co-supervisor in order to use the data of Prof S; 3. The purpose of the form, signed by the Appellant, and the collection of the relevant private information, was only to remove Professor X as supervisor in favour of the nominated supervisors on the form and not any other purpose such as changes to the form to permit Professor S to be a co-supervisor of which she was never aware; and 4. The findings of the Tribunal to the contrary in respect of the above two propositions were erroneous on the evidence that was before the Tribunal.
The Appellant traversed numerous aspects of the evidence in support of her contentions of fact.
The Appellant summarised those submissions at paragraph 31 of the opening written submissions as follows: 31 The Appellant submits that for the reasons provided above and the fact that i. The conduct complained of was occurred between 14 to 22 February 2018. ii. EJX did not consent to any changes to the form, after he signed the form (Decision at [62]). iii. EJX did not have a specific or detailed conversation with Professor 1 or another employee of the respondent about the need for a further alteration to the change form (Decision at [62]). iv. The form was changed without obtaining consent form EJX. v. The respondent failed to produce any evidence to suggest that they sought consent from EJX to change the form. vi. The respondent failed to produce any evidence to suggest that EJX was aware of change at any time prior to 22 February 2018. vii. The first time that EJX and Prof. [S] had any discussion was in April 2018. viii. EJX was working with [Professor S]'s data from Feb to April 2018, under direction of Prof. [1]. ix. The changed form was never provided to EJX until December 2020. There is no evidence to suggest otherwise. x. The purpose of the form, signed by EJX, was only to remove A/Prof. [X] and add Prof. [1]. Not any other changes was consented by EJX. The primary member ought to have found that the university changed the form without EJX's consent and by doing so, used EJX's personal information, including her signature, for the purpose that was not consented by EJX, and therefore breached ss 10, 12, 13, 14, 16, 17 and 18 of the PPIP Act.
We agree with the Respondent's submissions that this ground of appeal requires leave to appeal which should not be granted.
The key factual findings in issue under ground 2 are that the Appellant knew prior to 22 February 2018 that Professor S would be a co-supervisor and this was required to use certain data (even though she was not specifically made aware that the Supervisory Change Form had been or would be amended to include Professor S): at [63], [77] and [85].
We note that these findings were not essential to the Tribunal's dismissal of the Appellant's claim. The claim that the Respondent contravened the relevant provisions of the PPIP Act was rejected on the basis that the Respondent's purpose for collecting the Appellant's personal information was for the same purpose for which it was subsequently used. Accordingly, we agree with the first proposition put forward by the Respondent, that even if the Appellant did not know that there were changes to her supervisory arrangements before 22 February 2018, the other findings of fact meant there was no breach of the relevant provisions of the PPIP Act.
Further, this finding of fact was not critical to any other finding of whether the PPIP Act was contravened.
Second, we also concur with the Respondent's submissions to us that there was nothing 'unorthodox' about the Tribunal's fact-finding process that was 'likely to produce an unfair result': see Collins v Urban [2014] NSWCATAP 17 at [84].
In our view, the Tribunal's critical findings were open to it on the evidence and there is no demonstration of error in this fact-finding process.
The Tribunal fully accepted and took into account that the Appellant did not consent specifically to amendments to the Change of Supervisory Arrangements Form (at [60]), however the Tribunal found that (prior to 22 February 2018) that the Appellant knew and consented to the changes to her supervisory arrangements: at [85].
In this regard, we note and repeat what the Tribunal found at [63] with emphasis added by us: 63 However, I find that EJX was aware that Professor S was to be a co-supervisor of her PhD and that by 22 February 2018, Professor S had in fact been included in the change form with EJX's knowledge. EJX did not complain about the amendment expressly brought to her attention in the 22 February 2018 email. EJX required Professor S to be a co-supervisor in order to use the data of Professor S and by at least April 2018, EJX was corresponding with Professor S about the data and the work on her thesis. This indicates that EJX had consented to Professor S being her co-supervisor whether or not she had consented to the physical changes on the change form to reflect the co-supervision.
The underlined passage in our view is fully supported by the evidence which included answers given by the Appellant in cross-examination, and by documentary evidence before the Tribunal which demonstrated that the Appellant conferred with Professor S around April 2018.
Accordingly, the fact that the Appellant claimed in cross-examination that she did not use or need to use Professor S's data until April 2018 and that this was not accepted by the Tribunal does not reveal any error on the part of the Tribunal.
The Tribunal found, as it was entitled to find, that based on the Appellant's failure to complain after being notified of the change of supervisors on 22 February 2018 and the subsequent engagement with Professor S and use of her data that the Appellant likely knew about the change in supervisory arrangements before 22 February 2018.
We further note, that before the Tribunal was the email of Professor 1, extracted at [19] as follows: 19 On 13 February 2018, Professor 1 emailed HoS to advise that Professor S would take on 10% of his supervisory load for EJX, and he would manage the balance. In this email Professor 1 stated: I've heard from [the Dean], and spoken with [Professor S] and [EJX], I think it's okay from my end [and Professor S] for supervisory changes to go ahead. [Professor S] will go on for 10% [supervision], I'll take the rest. I've also had a few conversations with [EJX] and she is making progress around accessing the data … and structuring a timetable to write 3 good papers.…"
Accordingly, in this email on 13 February 2018, Professor 1 emailed the Head of School about conversations with the Appellant for Professor S to be a 10% co-supervisor.
This supports the factual finding made by the Tribunal that there were discussions with the Appellant around changes of supervisors before 22 February 2018.
This evidence, along with other evidence before the Tribunal fully supports the finding of the Tribunal that the Appellant knew that Professor S would be her co-supervisor before 22 February 2018.
Accordingly, we reject this ground of appeal and related submissions made by the Appellant.

The Tribunal erred in findings (at [31], [32], [96]) that 'EJX expanded the alleged breaches of the PPIP Act' in the application before this Tribunal and 'Points of Claim'. Also, Tribunal erred in finding that EJX contended her study was impaired because Prof S was on leave for a year and did not make contribution to her candidacy which disadvantaged her and her study.

The Appellant provided little elaboration on this ground. Nevertheless, we address each of the alleged errors in the two sentences of the Tribunal's findings at [31] and [32].
The first alleged error is in the statement by the Tribunal that the Appellant 'expanded the alleged breaches of the PPIP Act' in her application before the Tribunal. We note that this statement had no impact on the outcome of the application, because the Tribunal considered each of the purported breaches of the PPIP Act alleged in the application to the Tribunal and puts of claim.
The Appellant refers to the fact that in her internal review application, in which she ticked the box 'use of my personal or health information', she also ticked the box "unsure". This does not demonstrate any error in the statement made by the Tribunal.
Nextly, the Appellant in this ground takes issue with the finding that the Appellant contended her study was impaired because Professor S was on leave for a year and did not make contributions to her candidacy which disadvantaged her and her study: at [32].
Similarly, this finding, has no impact on the outcome of the application.
In any event, the finding is supported by the material before the Tribunal. In this regard we refer to the oral submissions made by the Appellant when the Appellant stated: It is open to the Tribunal to find the supervisory team play a significant role in the successful completion of a PHD student as based on public information available on the University website, the role of a PHD supervisor is to ensure successful completion of their student's study and the consequence of some conducts are not prompt to be seen instantly as per complaints and poor supervision and the evidence on extended long term leave by [Professor S] it is apparent how the respondent has negatively affected the applicant's candidacy and resulted in loss of her job offer, losing income, as I said, they didn't support my scholarship extension because of providing negative feedback, making unfair negative feedback on applicant work, I received intervention and it was unfair and the University only relied on the comments that they received from them even though they had only 10 person supervisory law. … I had to remove [Professor S] because I couldn't tolerate further pain and the impact of her poor supervision and everything is said there and I believe if the University had not added this person to the supervisory team except breaching my privacy, I would not be in difficulty … (underlining added)
Accordingly, we reject this ground of appeal.

The Tribunal erred in findings (at [58], [59], [72], [79], [80], [87]) that 'the Respondent's primary purpose for collecting the personal information did not change.'. Tribunal's finding that 'By 22 Feb 2018, EJX was aware of the amendments [in the supervisory change form].' contradicts its earlier finding (at [85])

The Appellant in this ground raises two alleged errors in the findings made by the Tribunal. The challenge to the purpose for collecting the personal information have already been canvased by us in respect of the grounds of appeal above.
In particular, we have already dealt with the finding that by 22 February 2018 the Appellant was aware of amendments to the supervisory arrangements but had not been made aware of the amendments to the form. The submissions in this regard were also put forward to support the proposition that the Tribunal erred in finding that the primary purpose for collecting the personal information did not change when the form was amended.
The main point put forward by the Appellant was that there was in essence no evidence to support this finding in view of the fact that the Tribunal found that the Appellant was not made aware that amendments were being made to the Supervisory Change Form.
In our view, the finding that 'the Respondent's primary purpose for collecting the personal information did not change' was available on the evidence. In coming to this conclusion, the Tribunal referred to the fact that 'the Respondent's form specifically indicates the purpose for which the personal information is collected - to bring about a change to the supervisory details': at [72].
In our view, this finding is fully supported also by considerations of context. The Respondent received a signed form with the Appellant's signature seeking certain changes, but this does not mean the Respondent, after further consideration, would process the exact changes sought by the student, because they may for various reasons be impossible, impractical, or not desirable.
In our view, it has not been demonstrated that this fact-finding process of the Tribunal was unorthodox or plainly wrong so as to justify a grant of leave
Nextly, there is the alleged finding that by 22 February 2018, 'EJX was aware of the amendments [in the Supervisory Change Form]'.
We note that no finding of breach of the PPIP Act turns on whether the Appellant knew of the physical changes to the Supervisory Change Form on or after 22 February 2018. What was important to the Tribunal's reasoning was that the Respondent gathered the personal information on the Supervisory Change Form 'to obtain the requisite approvals from supervisors, the Dean and HoSs to implement changes to the supervisory arrangements for the Appellant's PhD candidacy' (at [58]) and that this did not change (at [87]).
Nevertheless, in our view, there was nothing contradictory in the findings of the Tribunal as alleged by the Appellant in this ground of appeal. The Tribunal stated at [80]: 80 I reject EJX's contention that the respondent did not give her access to the amended change form. There is no evidence to support this contention and, in any event, by 22 February 2018, EJX was aware of the amendments. (emphasis added)
The Tribunal then stated at [85]: 85 I have already found that EJX was not aware prior to 22 February that the change form had been altered to include Professor S nor did she provide express consent to the change to the form. However, she did know Professor S was to be a co-supervisor. (emphasis added)
In our view, if it is fair to read the finding at [80] as one that the Appellant was aware of the amendments to the Supervisory Change Form by 22 February 2018, there is nothing contradictory in this with statements that: 1. The Appellant was not aware 'prior to 22 February 2018' about the change; and 2. The Appellant became aware of the change on 22 February 2018.
Accordingly, we fail to see any error in the approach of the Tribunal in its fact-finding process and there is, in our view, no basis for granting leave to appeal to permit this ground of appeal to go forward.

The Tribunal erred in findings (at [85]) that EJX 'did know Prof S was to be co-supervisor' before 22 Feb 2018, where Tribunal had already found that 'EJX was not aware prior to 22 Feb that the change form had been altered to include Prof S nor did she provide express consent to the change to the form.'

This ground of appeal raises similar matters to those previously canvased by the Appellant and dealt with by us in the grounds of appeal above. No further submissions of relevance were put forward in respect of this ground of appeal.
This ground of appeal is to suggest again that there is some tension between the finding that the Appellant was not aware prior to 22 February 2018 that the Change Form had been altered nor that she had given consent to the alteration and the finding that the Appellant nevertheless was aware and did know that Professor S was a co-supervisor before 22 February 2018. In our view there is no inconsistency in these two matters.
In our view the matters raised in this ground of appeal does not demonstrate any error in the fact-finding process that would justify a grant of leave to appeal.
In our view, there is nothing inconsistent with the finding that the Appellant knew that Professor S was to be co-supervisor before 22 February 2018, but was not aware that the Supervisory Change Form would be altered.
Accordingly, we decline to grant leave to appeal in respect of this ground of appeal.

The Tribunal erred in finding (at [27]) where it established an irrelevant link with its finding (at [26]). The Tribunal's responsibility at [97], was misplaced in its findings.

Paragraphs 26 and 27 are as follows: 26 In email correspondence in November 2019, Professor S communicated to EJX that she did not agree to EJX using certain data in the publication of a journal paper prepared by EJX as it required consent, belonged to the respondent and required further work prior to publication. 27 EJX subsequently made numerous other complaints to the respondent concerning the quality of the supervision provided by Professor 1 and Professor S including that they did not respond to correspondence, attend meetings or assist her generally in the completion of her PhD. She also alleged that Professor 1 left her unsupervised from July 2019.
Again, the Appellant did not significantly elaborate on this ground in her submissions before us. In our view, it is plain that there is no irrelevant link between the findings at [26] and [27]. And even if there was, this had no bearing of the outcome of the proceedings. There is also no demonstrated reason for us to overturn the Tribunal's conclusion at [97].
Accordingly, we reject this ground of appeal and decline to grant leave to appeal.

Section 58 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act).

It was contended in submissions by the Appellant that there was non-compliance with s 58 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act).
The Tribunal at [109] stated that there was 'no power under the ADR Act for the Tribunal to make declarations for non-compliance with s 58'. The Appellant appears to dispute this. In our view, the statement of law made by the Tribunal was plainly correct.
In any event, the matter of substance appears to be that there was a failure to provide one document in the s 58 bundle of the Respondent and the Tribunal found that there was no prejudicial effect on the Appellant in this regard: at [107].
Accordingly, and in any event, there was no utility in the declaration sought. In addition, the Appellant appears to take issue with the statement of the Tribunal at [111] that no order under s 72(3) of the NACT Act should be made because 'the Respondent was ultimately compliant with its obligation to produce and I accept that a non-disclosure at an earlier time was inadvertent'.
In our view, there was no error in this conclusion.
Nextly, the Appellant appears to assert that she should be paid damages on the basis of a failure to comply with s 58 of the ADR Act and that such non-compliance prolonged proceedings by a year.
In our view, there is no legal basis for such an order for damages and also the evidence was not there to support any damages being suffered.
Accordingly, we reject this contention put forward by the Appellant in her submissions to us.

Conclusion

Accordingly, for the reasons above, the Notice of Appeal will be dismissed.
The orders of the Tribunal are: 1. Leave to appeal refused. 2. Appeal 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

Amendments 19 December 2023 - Members name corrected Balla 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: 19 December 2023

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