Kelly v University of New South Wales - [2024] NSWCATAD 240 - NSWCATAD 2024 case summary — Zoe

NSWNSWCATAD

Kelly v University of New South Wales

[2024] NSWCATAD 240

NCAT Administrative and Equal Opportunity|2024-06-18

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2024-06-18

Source

Original judgment source is linked above.

Judgment (26 paragraphs)

[1]

REASONS FOR DECISION

The Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) establishes a legal framework providing for the protection of personal information and for the protection of the privacy of individuals. It requires public sector agencies to observe specific conduct obligations identified in the Information Protection Principles (IPPs) as set out in Division 1 of Part 2.
This matter concerns a request for deletion of records, and whether the conduct of the University of New South Wales (the University), which is accepted to be a public sector agency, breached ss 15, 16 or 17 of the PPIP Act.
The scope of these proceedings has been determined (and limited) by the previous decision of the Tribunal in these proceedings: see Kelly v University of New South Wales [2023] NSWCATAD 262 (Kelly No 1).

[2]

Background to these proceedings

The Applicant, Milton Kelly (Mr Kelly) is a former student of the University. In short, he says he was unfairly expelled.
On 4 October 2022, he made a request to the University of New South Wales (the University) under the PPIP Act: see Kelly No 1 at [15]. He requested that the University amend information about him by deleting it (Deletion Request). Relevantly, that request stated: I want UNSW to delete all erroneous information about me that it possesses, including but not limited to: - All documents referring in any way to me or anything done by me as "criminal" - All documents stating or implying that I've committed any assault - All documents stating or implying that I've either behaved threateningly or made threats

[8]

Submissions by Mr Kelly

Mr Kelly submitted that: 1. the University wrote a report about him which accused him of criminal assault; 2. he was being punished by the University for simply reporting an incident of a (former) student that was a breach of the Code of Conduct; 3. he made 24 complaints, none of which the University dealt with; 4. "a bunch of those complaints were actually deleted. They have deleted a bunch of my complaints. Every complaint was a lie"; 5. the University claimed that they were threatened by him, stopped him from attending campus, threatened to call the police on him, read his emails, circulated lies about him, and expelled him; 6. students of the University called him a stalker and a paedophile on the student Facebook page; 7. he wrote a number of emails asking them to stop lying about him; 8. he never did anything wrong and it was all "twisted against him"; and 9. there were documents that were never given to him by the University. In this regard, he pointed (as an example) to an external report that was prepared. He said there would have been emails between the author of the external report and the person at the University who instructed her. They hadn't been provided to him. So they must have been deleted.
During Mr Kelly's oral submissions he repeatedly said that the University called him a "vicious criminal", and circulated lies about him.
Mr Kelly was asked whether he had provided a note that could be attached to the University's records. He confirmed he had not. He told the Tribunal that "Nothing short of deletion will suffice", a note that says that he disagrees is "useless", and it would not convince anyone that there was no assault, particularly where it was his word against the University's.
He said "they [the University] have punished me for refusing to accept their decisions. So it is weird that they have now offered that choice [to put a note on the records]." By that, I understood him to mean that the University was now taking a different approach. But nothing turns on that, nor his reasons for thinking that.
Mr Kelly, toward the end of the hearing, appeared to briefly capitulate on his refusal to provide a statement to be annexed to the University's records. Nonetheless, he at no time provided a form of words for such a statement, despite being asked if he wished to do so.

[11]

Jurisdiction and Role of the Tribunal

The Tribunal has jurisdiction to conduct this administrative review under the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), the ADR Act and the "enabling legislation" (relevantly here the PPIP Act: see s 4(1) of the ADR Act).
Section 55(1) of the PPIP Act provides that a person may apply to the Tribunal for an administrative review under the ADR Act of conduct of a public sector agency that was the subject of an internal review application made by the person under s 53 if the person is not satisfied with the findings of the internal review or the action taken by the agency in relation to the internal review application.
Section 55(2) of the PPIP Act provides that on reviewing the conduct of the public sector agency, the Tribunal may decide not to take any action on the matter, or it may make orders for compensation or to stop or require certain conduct by the public sector agency. However, s 55(3) provides that nothing in s 55 limits any other powers that the Tribunal has under Div 3 of Pt 3 of Ch 3 of the ADR Act. One of the provisions contained in Div 3 is s 63 of the ADR Act.
Under s 63 of the ADR Act, the Tribunal's role is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law: ADR Act, s 63(1). For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the decision-maker: ADR Act, s 63(2).
The Tribunal considers the matter afresh, with neither party bearing an onus of proof except for a practical onus on the party who asserts a fact to prove its existence: Collins v Department of Fair Trading [2019] NSWCATAP 199 at [47]. If the Tribunal is left in a state of uncertainty about a fact in issue, the fact should be decided against the applicant: KP v Narrandera Shire Council (GD) [2011] NSWADTAP 15 at [26] and [31]; BYW v Commissioner of Police, NSW Police Force [2015] NSWCATAP 270 at [12]. The Tribunal is not bound by the rules of evidence: CAT Act, s 38(2). But it is an error of law for the Tribunal to make a finding of fact with no evidence (or no probative evidence) to support it: Meacham v Commissioner of Police [2020] NSWCATAP 107 at [54] and [83].
The Tribunal therefore has jurisdiction to consider the application for administrative review: 1. The University is a public sector agency, and an "administrator"; 2. Mr Kelly applied for an internal review; and 3. Mr Kelly was dissatisfied with the findings of that review.

[17]

The relevant provisions

The three sections of the PPIP Act the subject of these proceedings are set out below. 15 Alteration of personal information (1) A public sector agency that holds personal information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the personal information - (a) is accurate, and (b) having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading. (2) If a public sector agency is not prepared to amend personal information in accordance with a request by the individual to whom the information relates, the agency must, if so requested by the individual concerned, take such steps as are reasonable to attach to the information, in such a manner as is capable of being read with the information, any statement provided by that individual of the amendment sought. (3) If personal information is amended in accordance with this section, the individual to whom the information relates is entitled, if it is reasonably practicable, to have recipients of that information notified of the amendments made by the public sector agency. (4) This section, and any provision of a privacy code of practice that relates to the requirements set out in this section, apply to public sector agencies despite section 25 of this Act and section 21 of the State Records Act 1998. (5) The Privacy Commissioner's guidelines under section 36 may make provision for or with respect to requests under this section, including the way in which such a request should be made and the time within which such a request should be dealt with. (6) In this section (and in any other provision of this Act in connection with the operation of this section), public sector agency includes a Minister and a Minister's personal staff. 16 Agency must check accuracy of personal information before use A public sector agency that holds personal information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading. 17 Limits on use of personal information A public sector agency that holds personal information must not use the information for a purpose other than that for which it was collected unless - (a) the individual to whom the information relates has consented to the use of the information for that other purpose, or (b) the other purpose for which the information is used is directly related to the purpose for which the information was collected, or (c) the use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual to whom the information relates or of another person.

Kelly v University of New South Wales

At a glance

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Decision date

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Judgment (26 paragraphs)

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Legislation Cited (6)

Cases Cited (9)