EJX v University of Newcastle

NCAT Administrative and Equal Opportunity|2022-05-03

REASONS FOR DECISION

On 15 March 2021 the applicant, known as EJX, sought review by the Tribunal of a decision of the University of Newcastle (the University) that it has not contravened the provisions of the Privacy and Personal Information Protection Act 1998 (the PIPP Act). The applicant complains of the conduct of the University in creating an email address for her which incorporated her student ID number. The University asked the applicant to use that email address to communicate with it rather than by emailing various University employees.
Over time since the matter was lodged with the Tribunal various directions were made for the filing of documents. The applicant sought to summons the University to produce certain documents. Ultimately the Appeal Panel upheld a decision of the Tribunal refusing to issue the summons. In its decision of 7 April 2022 the Appeal Panel noted that at the hearing on 11 March 2022 it raised the fact that the University had not filed with the Tribunal documents required to be filed under s 58 of the Administrative Decisions Tribunal Act 1997 (the ADR Act). The University undertook to file the s 58 documents the following Monday (14 March 2022).
On 14 March 2022 the University filed documents in accordance with s 58 of the ADR Act and made an application seeking orders under s 59 of the ADR Act, and referring to s 67 of the Civil and Administrative Tribunal Act 2013 (CAT Act), that it not be required to provide certain documents under s 58 as they are subject to a claim for client legal privilege.
On 15 March 2022 the University filed a further application seeking orders under s 64 of the CAT Act that the names and other identifying material concerning five employees contained in the s 58 documents not be disclosed to the applicant or the public.
On 17 March 2022 the University provided the applicant with copies of the 14 and 15 March 2022 applications (with certain redactions).

Applicant's request to provide further written submissions

Directions were made on 29 March 2022 requiring the applicant to provide submissions in relation to the University's 14 and 15 March applications by 19 April 2022. The University was given until 26 April 2022 to provide any submissions in reply and the matters were set down for hearing by telephone at 2:00 pm on 3 May 2022. The applicant's submissions were filed on time. On 26 April 2022 the University sought an extension of time until 28 April 2022 to provide its submissions in reply. The University's submissions were received by the Tribunal and the applicant on 28 April 2022. The applicant did not consent to the extension of time. A Tribunal Member extended the time to 28 April 2022 by order dated 2 May 2022 and directed that the matters remain listed for 3 May 2022.
Just prior to the hearing on 3 May 2022 the applicant sent in written submissions stating that she had been disadvantaged in the granting of the extension of time to the University and that she reserved her right to make submissions in reply to the University's submissions in reply. The applicant pressed her arguments at the hearing and sought time to make further written submissions. She stated she had not had time to respond to the University's submissions in reply nor seek legal advice. I refused that application.
My reasons for refusing the application were that the applicant had been on notice of both applications since mid-March, had provided lengthy submissions in response to the applications and was served with the University's submissions in reply on 28 April 2022 (which was only two days after the original date set at the directions hearing on 29 March 2022). At no time was any direction made requiring or permitting the applicant to provide further written submissions following receipt of the University's submissions in reply. The applicant's submissions filed on 19 April 2022 addressed the issues to be considered in this application for orders by the University (although some matters raised in the submissions are not directly relevant to those issues but concern the substantive proceedings and other proceedings before the Tribunal). The applicant was invited to make oral submissions at the hearing on 3 May 2022 and did so. It was open to her to have sought legal advice on the issues raised in the applications at any time since mid-March and she gave no reasons why legal advice was to be sought or was necessary.
As the issues involved were straightforward and were interlocutory in nature and the applicant was given an opportunity at the hearing to address the University's submissions in reply, I was satisfied that the matter should be dealt with to finality on the day and that she was not unduly disadvantaged.

Late filing of s 59 application

Under s 58 of the ADR Act within 28 days of receiving notice of the application to the Tribunal an administrator is required to file with the Tribunal all documents it considers to be relevant to the determination of the application by the Tribunal. There is no question that the University did not file the documents within 28 days. The University states that it was under the genuine belief that production of the material was to be in accordance with directions made by the Tribunal early in the proceedings regarding the filing of evidence. It was not until the Appeal Panel hearing on 11 March 2022 that the error became apparent. The University then filed the documents and made the applications the subject of this decision.
The applicant notes that s 59 of the ADR Act states that an administrator may apply to the Tribunal before the expiry of the period referred to in s 58 for an order that the administrator not be required to lodge a copy of a document under s 58. She submits that the University's application under s 59 of the Act is therefore out of time and an extension of time should not be granted.
The applicant submits that the University should not be granted an extension of time as it has had ample time to make the application and failed to do so. The applicant further submits that the University has not provided any reason for the delay and deliberately and unreasonably refused to comply with its duty under s 58. The applicant also argues that, as a matter of fairness, she should be entitled to access all relevant documents.
Sub-section 58(3) of the ADR Act provides that the Tribunal may make an order extending the time within which the s 58 documents are to be provided. I agree with the applicant that there has been considerable delay in the lodging of the s 58 material and in making an application under s 59. I do not, however, consider that the delay has been deliberate or unreasonable. It is apparent that there has been a good deal of confusion and a misunderstanding that the production of documents in accordance with s 58 was subsumed into other directions made by the Tribunal for the filing of evidence. I do not consider that in the circumstances the University should be required to forego any claim for client legal privilege which it otherwise would be entitled to make or be deprived of the ability seek to confidentiality orders if the circumstances warrant.
To the extent necessary, I therefore extend the time for the making of the applications for orders under s 59 of the ADR Act and s 64 of the CAT Act.

Client legal Privilege

In its application of 14 March 2022 the University sought orders under s 59 of the ADR Act that it not be required to lodge five documents with the Tribunal which it would otherwise be required to be lodged under s 58 on the basis that they are subject to client legal privilege. The University has since waived its claim for privilege in relation to three documents dated 7 September 2020, 4 December 2020 and 15 January 2021. It maintains the claim in relation to documents dated 8 December 2020 and 11 December 2020. Both are documents authored by Hugh Aronjilla.
The Tribunal may make an order under s 59 of the ADR Act if it is satisfied that s 67 (Privileged documents) of the CAT Act (as applied by s 67 of the ADR Act) operates so as not to require the disclosure of the document. Section 67 of the CAT Act relevantly provides that nothing in the Act requires the disclosure of a document if the Tribunal is satisfied that evidence of the document could not be adduced in proceedings before a NSW court by reason of the operation of, amongst other provisions, Pt 3.10 of Ch 3 of the Evidence Act 1995.
The respondent submits that the 8 December 2020 and 11 December 2020 documents are caught by Pt 3.10 of Ch 3 of the Evidence Act. The relevant provisions in Pt 3.10 are ss 118 and 119. Put briefly, s 118 prevents disclosure of confidential communications and confidential documents between a lawyer and a client for the dominant purpose of the lawyer providing legal advice to the client. Section 119 prevents disclosure of confidential communications and confidential documents between a lawyer and a client for the dominant purpose of the client being provided with professional legal services in proceedings or anticipated proceedings. The terms "confidential communication" and "confidential document" are defined in s 117 of the Evidence Act.
In order for client legal privilege to attach to information, each element of client legal privilege must be satisfied. The essential elements of client legal privilege are: 1. the existence of a client and lawyer relationship; and 2. the confidential nature of the communication or document; and 3. the communication or document was brought into existence for the dominant purpose of either: 1. enabling the client to obtain, or the lawyer to give legal advice or provide legal services, or 2. for use in existing or anticipated litigation.
The privilege extends to various classes of documents and beyond communications directly between lawyer and client, including documents used to assist the lawyer to give advice and the client to receive it: Trade Practices Commission v Sterling (1979) 36 FLR 244 at [4]. It is not only the primary record of the advice that is privileged. Summaries of the advice and documents recording instructions to provide legal advice attract the privilege if they are prepared or made for the purpose of providing advice to a client: Fenwick v Wambo Coal Pty Ltd (No 2) [2011] NSWSC 353 at [30]; Tebbutt v Minister for Lands and Water [2015] NSWCATAD 95 at [34].
The important question to be asked is "what was the intended use (or uses) of the document which accounted for it being brought into existence": Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 at 366. This is to be determined as a question of fact: Waterford v Commonwealth (1987) 163 CLR 54 at 66.
The communications the subject of the claim for privilege are written by Hugh Arjonilla as Legal Counsel employed by the University. In the case of in-house legal officers employed in government service, privilege attaches to communications where it can be demonstrated that "the dominant purpose of the communication was the provision of legal advice, and that the legal officer concerned had an appropriate degree of independence": Battin v University of New England [2013] NSWADT 73 at [39].
The applicant states that Mr Aronjilla is not Legal Counsel for the University but an academic. Mr Aronjilla has provided an affidavit in which he sets out his employment details and role with the University. I am satisfied that at the time he wrote the relevant documents Mr Aronjilla was employed by the University as General Counsel, was an Australian legal practitioner who held a practising certificate issued in NSW and that his role was to provide independent legal advice to the employees and officers of the University. There is no information before me which would indicate that General Counsel within the University is not independent or that communications with clients are generally other than confidential.
Both documents were written to employees of the University who were dealing with complaints by the applicant regarding an alleged breach of her privacy. The applicant in her submissions casts doubt on whether the communications in the documents were for the dominant purpose of giving or obtaining legal advice. Based on my perusal of the documents over which privilege has been claimed and the evidence provided by the respondent, I am satisfied that the communications were for the dominant purpose of giving legal advice. I am therefore satisfied that the information is subject to client legal privilege. I note that the University has not waived privilege in relation to these two documents.
It appears that there has been an inadvertent disclosure to the applicant by the University of one of documents. I agree with the University that such a disclosure does not constitute waiver and that the Tribunal should allow correction of this mistake (see Expense Reduction Analyst Group Pty Ltd & Ors v Armstrong Strategic Management & Ors (2013) 303 ALR 199).
I am satisfied that an order should be made under s 59 of the ADR that the 8 December 2020 and 11 December 2020 documents not be lodged with the Tribunal under s 58.

Information identifying particular employees

The University also seeks orders under s 64 of the CAT Act prohibiting or restricting the disclosure of the names and other identifying information relating to five employees of the University. The University proposes that this information be redacted from certain documents contained within the s 58 material.
The University submits that it is desirable to make such an order for two reasons: 1. The information is the personal information of the five individuals as defined in the PIPP Act and would not be disclosed under that Act. The University submits that the public interest in disclosing the information is not outweighed by the effects of the disclosure on an individual's right to privacy. 2. Release of the information would present a risk to the health, well-being and safety of the persons concerned.
There is no doubt that the information the University seeks to withhold is the personal information of the persons concerned. I note that those persons are employees of the University and all were performing functions in accordance with their relevant roles. It would not be unusual for the names at least of such employees be disclosed in the documents provided in accordance with s 58 of the ADR Act . However, leaving to one side the University's submissions about the PIPP Act, I am of the view that in this matter the orders sought by the University should be made.
In the substantive proceedings the applicant complains of the conduct of the University in using her student ID to create a dedicated email address which she was asked to use to communicate with the University. The University's internal review decision of 15 February 2021 states that: 1. On 26 June 2020 the University requested the applicant to use the dedicated email address to communicate with it for the purpose of efficiently dealing with a substantial amount of communications that had previously been directed to a large number of the University's employees. 2. On 8 July 2020 the University stated in an email to the applicant that she had continued to phone and email various units of the University, which the University stated raised concerns that the nature and frequency of the communication presented substantial health, safety, resource and equity issues for the University, its staff, other students and the applicant. 3. On 1 October 2020, the University wrote to the applicant that communication with University units had continued despite the applicant being advised of the process established to manage her enquiries.
As was stated by the Appeal Panel in EJX v University of Newcastle [2022] NSWCATAP 105 at [50], the reasons for the University's establishment of the dedicated email address are not relevant to the issue whether the creation and use of the dedicated email address was contrary to the Information Protection Principles set out in the PIPP Act. However, in my view, those reasons and the applicant's conduct thereafter are relevant to the current issue.
The information sought to be redacted relates to the identity of those University employees who have accessed the dedicated email account. The matters above indicate that the applicant has a habit of directing a substantial amount of communications to University employees. As set out above, concerns have been raised about the health and safety of those University employees arising out of the communications by the applicant. The applicant has submitted that the University has not established how the disclosure of the information would create any health and safety risks. However, based on her past behaviour, it is likely that, were the applicant to be provided with the details of those employees who had access to the dedicated email account, she would communicate with them directly and send them significant numbers of communications. It is also likely that this may have a detrimental effect upon the health and wellbeing of those employees. For that reason, I am satisfied that the information identifying the five employees should not be released to the applicant.
Furthermore, s 58 of the ADR Act requires the University to lodge a copy of every document or part of a document that it considers to be relevant to the determination of the application by the Tribunal. The applicant has previously sought access to these documents by way of summons. In the appeal from a decision of the Tribunal refusing the summons, the Appeal Panel stated that it was not persuaded that documents identifying the officers of the University who have access to the dedicated email address or providing their contact details "would be relevant to the issues arising in the substantive proceedings" (see EJX cited above at [52]). It is therefore open to the University under s 58 to not provide those parts of the documents that identify its employees as those parts are not relevant to the Tribunal's determination of whether the creation and use of the dedicated email address was contrary to the PIPP Act. For the sake of certainty, however, I will make an order under s 64 of the CAT Act in relation to that information.

Costs

In her written submissions, the applicant sought an order for costs. The application is not clear but seems to be made on the basis that she has incurred costs in making various attempts to obtain documents from the University, including through the issue of summonses and an appeal to the Appeal Panel. Any costs application could only be entertained in relation to this current application for orders by the University.
In this matter, the University was entitled to make the applications it did under s 59 of the ADR Act and s 64 of the CAT Act. As noted above, there has certainly been a delay in the lodging of the s 58 documents by the University but this was not done deliberately. I accept that the delay has prolonged the proceedings and that the applicant, not unreasonably, feels aggrieved by this. However, the University's current application has been successful and I do not consider that there are any special circumstances as required by s 60 of the CAT Act which would warrant an award of costs.

Orders 1. Pursuant to s 59 of the Administrative Decisions Review Act 1997 the University of Newcastle is not required to lodge with the Tribunal copies of the 8 December 2020 and 11 December 2020 documents as specified in the University's application of 14 March 2022. 2. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, until further order of the Tribunal, the publication of the 8 December 2020 and 11 December 2020 documents or matters contained in the 8 December 2020 and 11 December 2020 documents is prohibited. 3. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013, until further order of the Tribunal, the disclosure of the 8 December 2020 and 11 December 2020 documents or matters contained in the 8 December 2020 and 11 December 2020 documents is restricted to the University of Newcastle, the University's legal representatives and the Tribunal. 4. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, until further order of the Tribunal, the disclosure of the of the names and other identifying information with respect to the persons identified by the University of Newcastle in its application of 15 March 2022 is prohibited. 5. The applicant's application for costs is dismissed. 6. The University of Newcastle is to provide to the Tribunal and to the applicant an indexed and paginated copy of the documents required to be lodged with the Tribunal under s 58 of the Administrative Decisions Review Act 1997 in accordance with these reasons on or before 24 May 2022. 7. The proceedings are listed for directions by telephone at 9:30 am on 31 May 2022 to prepare the substantive application for hearing.

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: 13 May 2022

At a glance

Court

Decision date

Source

Judgment (8 paragraphs)

Parties

Cases Cited (7)