Watkinson v Western Sydney University

NCAT Appeal Panel|2023-03-03

REASONS FOR DECISION

On 28 May 2019 a Pro-Vice Chancellor at the Respondent university sent an email to another university officer seeking advice on a potential misconduct complaint against Mr Watkinson, the Appellant.
On 5 June 2019 the university sent an email to Mr Watkinson which said: I have received reports of concern from staff about their interactions with you … that I have considered as reports of potential student misconduct. These reports will be forwarded to … for consideration under the Student Misconduct Rule…
After an investigation, in which Mr Watkinson participated, the university wrote to Mr Watkinson on 15 July 2019. The email relevantly says: In making my decision, I considered the following: (a) Email communications between yourself and staff …; and (b) Verbal reports provided by academics … I also note that you attended a meeting on 11 June 2019 to provide me with your response to the allegation. At that meeting, you denied the allegation. Having considered all the evidence available to me, I have decided that the allegation cannot be sustained, and is dismissed.
On 31 May 2021 Mr Watkinson made an application to the university under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) for some records relating to that allegation.
Mr Watkinson was not satisfied with the decision made by the university in relation to his application, and ultimately filed an application in the Civil and Administrative Tribunal against the university. The Tribunal dismissed that application on 30 September 2022. This is an appeal from that decision.

The university's First Internal Decision

On 29 June 2021 the Manager emailed Mr Watkinson to notify him of the University's decision to give him access to documents in three of the four categories in his access application. She also informed him that the university did not hold any documents relating to the other category.

Mr Watkinson's Internal Review Application

On 27 July 2021, Mr Watkinson submitted an internal review application to the university in relation to the decision.

The university's Second Internal Decision

The university undertook further searches of its records and made a Second Internal Decision on 16 August 2021. It gave Mr Watkinson access to some more documents.

Review by Information and Privacy Commissioner

Mr Watkinson submitted a request for a review of the university's Second Internal Decision to the Information and Privacy Commissioner (IPC) pursuant to s 89 of the GIPA Act.
On 18 February 2022 the results of the IPC review were published. The IPC was satisfied that the university had demonstrated that its searches had been reasonable and it had complied with s 53 of the GIPA Act.

Application to the Tribunal

Mr Watkinson filed an Application in the Civil and Administrative Tribunal in its Administrative and Equal Opportunity Division, for an external review of the Second Internal Decision of the university made on 16 August 2021.
On 9 May 2022 the Tribunal made an order requiring the university to inform the Tribunal and Mr Watkinson whether it held the further information described in Mr Watkinson's preliminary statement of 5 May 2022.
The solicitors for the university advised that they had been instructed that the university did not have any of those additional documents.

Tribunal hearing

In its decision, the Tribunal said that, at the hearing, Mr Watkinson's application had been limited to one complaint, being the email compilations which were attachments to correspondence or advice.
The Tribunal heard evidence as to the steps taken by the university to find the documents.
The Tribunal found that, as required by s 53 of the GIPA Act, the university had undertaken such reasonable searches as were necessary to find all relevant documents. Those searches used the resources reasonably available to the university including finding the information which had been stored electronically.
The decision of the university of 16 August 2021 under review was affirmed.
Mr Watkinson has appealed to us from this decision.

Appeal from the Tribunal

Section 80 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) relevantly provides: (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. (2) Any internal appeal may be made … (b) as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may: (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing …
In summary Mr Watkinson has a right to appeal on any question of law. He can appeal on other grounds with leave. He has sought leave. Mr Watkinson can also ask us to conduct a new hearing with new evidence if we are satisfied that the grounds for appeal warrant it. Neither party sought a new hearing.
An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
The principles governing an application for leave to appeal are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles as are applied by the courts. In Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206 the Court said at [28] (citations omitted): Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong.
As Mr Watkinson is unrepresented, a broad interpretation of the grounds of appeal should be allowed unless it unreasonably prejudices the university: Prendergast v Western Murray Irrigation Ltd [2004] NSWCATAP 69. However, it is not the role of the Appeal Panel to draft grounds of appeal for Mr Watkinson which have not been raised, and then resolve them (ZNX v ZNY [2020] NSWCATAP 41), unless the issues go to the jurisdiction of the Tribunal or are otherwise considered necessary to resolve the appeal.
In Bauskis v Liew [2013] NSWCA 297 at [67]- [70] the Court of Appeal said: First, the Court's obligation in the case of a self-represented litigant is to give sufficient information as to the practice and procedure of the Court to ensure that there is a fair trial to both parties.... Secondly, the Court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties ... Thirdly, the duty of a trial judge to assist an unrepresented litigant does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant... Fourthly, the trial judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness ...
Nothing in the construction of the NCAT Act leads us to the conclusion that these principles view should not apply equally to our obligations in this appeal.

This Appeal

Mr Watkinson seeks the following orders: 1. The matter be sent back to the Tribunal to reconsider its decision, with further evidence (s 81(1) (e) of the NCAT Act); or 2. The Tribunal's decision be set aside and a new decision "substituted to the effect that those materials sought by the Appellant, being part 4 of the GIPA Act information access application known to both parties, and pertaining to those material grounds of the allegation previously described by the Appellant are not held by the Respondent."
In relation to the second alternative, in oral submissions Mr Watkinson explained that the university had given him the documents which they held and not the documents he had sought. He had wanted a decision from the Tribunal which expressly said that the university did not have the documents he sought.
At the commencement of the hearing before us Mr Watkinson confirmed the following parts of his written submission dated 24 February 2023: 6. In its Reply to Appeal the Respondent states the following: "By way of clarity, the respondent's position has consistently been that: (a) the appellant has been provided with all the documents responsive to the GIPA Act request that the respondent held; and (b) the respondent has undertaken the searches as are necessary to find the information applied for by the appellant. a. The appellant does not challenge either of these claims. The Respondent's raising of these points is irrelevant to the issue of the appeal. The Appellant agrees that: (a) the Respondent released to the Appellant documents held by the Respondent at the time those documents were released to the Appellant; (b) The Respondent undertook the searches it deemed necessary.
The submissions continue: b. However the Appellant does object to the Respondents' formal decision to release those documents explicitly sought by the Appellant to the Appellant on the basis that evidence supplied by the Respondent demonstrates that those documents explicitly sought by the Appellant are not held by the Respondent. The Appellant now appeals the Tribunal's decision and submits that the Respondent's decision was upheld by the Tribunal on false grounds. The university opposes the orders sought and says that the Tribunal came to the correct decision and made no error of fact or law.
Mr Watkinson has set out five Grounds of Appeal in his Notice of Appeal.

Ground One

Mr Watkinson says the Tribunal mischaracterised the materials he sought as: 1. It found the material released by the university was the material he sought because that was the material which the university released ie the finding was circular. We do not accept this is a correct description of the Tribunal's reasoning and findings. 2. The Tribunal did not review the relevance of the materials released by the university accurately, and in good faith, against the parameters of those materials sought. 3. The Tribunal's misidentification of the materials resulted in a false conclusion that the materials released were those he sought.

Ground One - submissions by the university

The university says there is no discernible error of fact in the reasons of the Tribunal, and this ground of appeal must fail.

Ground One - finding

Mr Watkinson wrote to the Tribunal before the hearing commenced and said he wanted "Allegation documents referred to as staff reports by Dr James Arvanitakis in an email I received from him on 5th June 2019 and created prior to 15th July 2019". This was confirmed by Mr Watkinson at the commencement of the hearing. The Tribunal relied on this in determining whether the university had complied with its obligations under s 53 of the GIPA Act.
We decline to find that the Tribunal made an error of fact in its definition of the "information" when considering s 53 of the GIPA Act.

Ground Two

Firstly, Mr Watkinson feels that the Tribunal considered he was making unreasonable requests for an explanation from the university, which the university had no obligation to provide.
Secondly, Mr Watkinson says he still has not received the "document in DOCX format". He has added in his written submissions that he believes the evidence shows that the DOCX document was fabricated to retrospectively establish allegations against him.

Ground Two - submissions by the university

The university says that the issue of the compilation document was considered by the Tribunal and no error has been identified by Mr Watkinson.

Ground Two - finding

There is no evidence to support the first submission. The Tribunal did not say that Mr Watkinson was making an unreasonable request for an explanation.
In relation to the second submission, the issue was extensively considered by the Tribunal. It heard evidence from the university as to why the document no longer existed in that format. The Tribunal noted at [71] that the university had provided the documents to Mr Watkinson in differently formatted attachments and none had been withheld.
No error has been identified.

Ground Three

In Ground Three Mr Watkinson says: 1. The Tribunal relied on a summary statement he prepared on 5 May 2019 which had been filed in error, but with good intentions. It had been admitted into evidence without his being given an opportunity to object. The information in that statement led the Tribunal into error. 2. He had been asked to cross-examine the university's witness before submissions which was unreasonably difficult for him. He added in his written submissions that he was confused because of the informality of the hearing, so that the scheduling of cross examination without context was inappropriate given his lack of experience in court procedure. 3. He had only been given 15 minutes to make submissions and told not to read from his notes. This possibly had resulted in the Tribunal making serious factual errors and misunderstanding issues. In his written submissions Mr Watkinson conceded that the Tribunal asked him to finish in 15 minutes after he had already been making submissions for 25 minutes.

Ground Three submissions by the university

The university concedes that Ground Three raises questions of law.
In relation to (1) the university says that was a statement that was given to the Tribunal by Mr Watkinson and the Tribunal was not required to provide him with the opportunity to object to his own evidence.
In relation to (2), Mr Watkinson had ample opportunity to make submissions over the course of the hearing.
In relation to (3), the Tribunal conducted the hearing in the ordinary way, with the parties first proceeding to evidence, and then submissions.

Ground Three - finding

In relation to (1), the statement is referred to at [48] - [50] of the Tribunal's Reasons. It is clear from the Reasons that the statement initiated the further correspondence and then the oral evidence of Mr Watkinson which led to, as we have said, the ambit of the hearing being confined to those documents within the Allegation Documents as referred to in [50] and [51] of the Tribunal's Reasons.
Mr Watkinson has not explained how anything in that statement led the Tribunal into error. We decline to find that it did.
In relation to (2), we are satisfied that the transcript shows that Mr Watkinson had sufficient opportunity to make oral submissions over the course of the hearing. We are not persuaded that there was a lack of procedural fairness.
In relation to (3), we are satisfied that the Tribunal conducted the hearing in the ordinary way and that this was explained to Mr Watkinson. At Disc 2 Page 1, 00:03:28 of the Transcript, shortly after the commencement of the hearing, Mr Watkinson was told that he would be given the opportunity to cross examine the university's witnesses after which it would be open to the parties to make submissions. While we understand the difficulties facing unrepresented litigants, we are not persuaded that in this instance there was a lack of procedural fairness.

Ground Four

Mr Watkinson says that the Tribunal found the university did nothing wrong because it had no motive to do so. However, Mr Watkinson said, the university's responses had been unreasonable from the outset and there were plausible motives to invent grounds for an allegation to cause harm.
Mr Watkinson says the Tribunal found he would need to prove beyond doubt that the university had conspired to fabricate documents.

Ground Four - submissions by the university

The university says it rejects the contention that the Tribunal's review of the evidence was flawed.

Ground Four - finding

It is clear from Mr Watkinson's written submissions dated 24 February 2023 that he believes that the Tribunal should have accepted his contention that the university had altered the contents of some documents before releasing them to him. The contrary finding by the Tribunal, he said, was evidence that it had not carefully considered his submissions.
This issue was canvassed in the Tribunal. For example during the hearing (at Disc 4 Page 9 00:45:48) Mr Watkinson expressed his concern that a redaction had been used to cover up the fact that the document was not in its original form. The Tribunal member then said to Mr Watkinson "you need to take me to the document to try and explain that because I have difficulty in following how a document which came out of its system in its original form, you say, has somehow been doctored". Mr Watkinson then went on to make submissions about the issue.
We are satisfied that the Tribunal gave Mr Watkinson the opportunity to explain his submission and then gave cogent reasons for not accepting that submission. Those Reasons for making a finding in favour of the university on this issue included the seriousness of the allegation and the lack of a motive. The fact that the Tribunal did not accept his submission is not evidence that they had not considered it.
We find that this issue was dealt with at length by the Tribunal and no error has been identified.

Ground Five

Mr Watkinson believes that the Tribunal accepted that he had engaged in the alleged misconduct. The misunderstanding, he says, may have prejudiced the Tribunal's reasoning.

Ground Five - finding

This submission is entirely misconceived. It relies on passages in the Tribunal's Reasons where the Tribunal: 1. Simply refers to there having been a complaint which gave rise to an investigation which led to these proceedings. 2. Refers to the complaint as "allegations" when there was only one.
It is clear from the Reasons that the Tribunal only referred to the complaint to give context to these proceedings and no error has been identified.

Outcome

Based on our findings and the admission by Mr Watkinson set out in para 31 of these Reasons we find that none of the grounds of appeal should be upheld.
We refuse to make the second Order sought by Mr Watkinson. It is only our role to determine whether the Tribunal made an error when it decided that Mr Watkinson had been provided with the documents he is entitled to under s 53 of the GIPA Act. As the Tribunal said at [56], the GIPA Act gives persons an enforceable right to seek access to 'information' 'contained' in a 'record' that is 'held' by the agency (ss 3, 4 and 41 and cl 12 of Schedule 4). "It is not a vehicle for seeking explanations of administrative decisions of a government agency, unless an explanation (the information) is contained in a record of the agency at the time the GIPA access request was made" (Davison v NSW Department of Education and Training [2013] NSWADT 25 at [24] per Higgins DP).
We make the following order: 1. 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 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: 16 March 2023

At a glance

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Judgment (26 paragraphs)

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Legislation Cited (1)

Cases Cited (7)