Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Chi v Technical and Further Education Commission [2012] NSWCA 131
• Hearing dates: 23 April 2012
• Decision date: 09 May 2012
• Before: Barrett JA at [1]; Sackville AJA at [2]

Decision

1. Application for leave to appeal dismissed.

2. Applicant pay the respondent's costs of the application for leave to appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: PRACTICE AND PROCEDURE - application for leave to appeal from interlocutory decision of the Appeal Panel of the Administrative Decisions Tribunal - no question of law shown by applicant - application dismissed; ADMINISTRATIVE LAW - Administrative Decisions Tribunal - procedure - leave to appeal from interlocutory decision of Appeal Panel - meaning of "interlocutory function"
• Legislation Cited: Administrative Decisions Tribunal Act 1997; Courts and Other Legislation Amendment Act 2009; Courts Legislation Miscellaneous Amendments Act 2002; Health Records and Information Privacy Act 2002; Privacy and Personal Information Protection Act 1998
• Cases Cited: Avilion Group Pty Ltd v Commissioner of Police [2009] NSWCA 93; 74 NSWLR 514; JT v Technical and Further Education Commission [2011] NSWADT 63
• Category: Principal judgment
• Parties: Johny Chi (Applicant); Technical and Further Education Commission (Respondent)
• Representation: Counsel: Applicant in person; P Ginters (Respondent); Solicitors: Crown Solicitor (Respondent)
• File Number(s): 2011/302119

Decision under appeal

• Date of Decision: 2011-07-29 00:00:00
• Before: Hennessy DPM
• File Number(s): NSWADT 119012

Judgment

1 BARRETT JA: I agree with Sackville AJA.

2 SACKVILLE AJA: The applicant is a litigant in person. He seeks leave to appeal to this Court against a decision of the Appeal Panel of the Administrative Decisions Tribunal ("ADT"). The respondent is the Technical and Further Education Commission ("TAFE").

3 The current application arises out of complaints made by the applicant that staff of TAFE committed breaches of the Privacy and Personal Information Protection Act 1998 ("PPIP Act") and the Health Records and Information Privacy Act 2002. The breaches were alleged to have occurred in 2004 and 2005, when the applicant was a TAFE student.

4 Between October 2005 and May 2008, the applicant pursued complaints about TAFE's alleged conduct with a number of agencies, apparently without success.

5 In 2008, the applicant asked TAFE to undertake an internal review of the conduct of which he complained. TAFE did no do so within the time specified in the PPIP Act and the applicant sought review of TAFE's conduct in the ADT. In July 2011, the Appeal Panel of the ADT dismissed the applicant's application for leave to appeal from what were said to be three interlocutory decisions of the ADT made in connection with the application for review of TAFE's conduct.

Legislation

6 Section 53 of the PPIP Act provides for internal review by a "public sector agency" (including TAFE), upon the application of a person aggrieved by the agency's conduct. An application for such review must be lodged at the office of the public sector agency within six months, or such later date as the agency may allow, from the date on which the applicant first became aware of the conduct the subject of the application: s 53(3)(d).

7 The agency must complete the review as soon as reasonably practicable. However, if the review is not completed within 60 days from the date the application was received, the applicant is entitled to seek review in the ADT pursuant to s 55 of the PPIP Act: s 53(6).

8 Section 55 of the PPIP Act relevantly provides as follows:

"(1) If a person who has made an application for internal review under section 53 is not satisfied with:

(a) the findings of the review, or

(b) the action taken by the public sector agency in relation to the application,

the person may apply to the Tribunal for a review of the conduct that was the subject of the application under section 53 ...

(2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders:

(a) ... an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct,

(b) an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice,

(c) an order requiring the performance of an information protection principle or a privacy code of practice,

(d) an order requiring personal information that has been disclosed to be corrected by the public sector agency,

(e) an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant,

(f) ...

(g) such ancillary orders as the Tribunal thinks appropriate.

(3) Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997."

9 The powers conferred on the ADT by Div 3 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 ("ADT Act") include (s 63(3)) deciding:

"(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal."

A "reviewable decision" is defined by s 8(1) of the ADT Act to mean "a decision of an administrator that the Tribunal has jurisdiction under an enactment to review".

10 A party to proceedings in which an "appealable decision" of the ADT is made may appeal to the ADT constituted by an Appeal Panel: s 113(1). An appeal may be made on any question of law and, with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision: s 113(2).

11 Following the amendments to s 113 of the ADT Act effected by the Courts and Other Legislation Amendment Act 2009 ("2009 Amending Act"), operative from 19 June 2009, subss 113(2A) and (2B) now read as follows:

"(2A) ... an appeal does not lie to an Appeal Panel of the Tribunal against the exercise of an interlocutory function (within the meaning of Section 24A) of the Tribunal except by leave of the Appeal Panel.

(2B) For the purposes of determining whether to grant leave under subsection (2A), and for determining the appeal if leave is granted, the Appeal Panel may be constituted by:

(a) one presidential judicial member - if the interlocutory function was exercised by the Tribunal constituted by a Deputy President or by one or more members other than the President ..."

Section 24A of the ADT Act defines "interlocutory function", for the purposes of the section, to include the making of any order or other decision by the ADT in respect of summary dismissal of proceedings. (The amendments were designed to overcome the decision in Avilion Group Pty Ltd v Commissioner of Police [2009] NSWCA 93; 74 NSWLR 514, which held that s 113(2B), in its unamended form, did not permit a single member of the Appeal Panel, having granted leave, to determine the appeal.)

12 There is no statutory right of appeal to the Supreme Court from a decision of the ADT under Chapter 7 of the ADT Act, except in relation to a decision of the Appeal Panel. A party to proceedings before an Appeal Panel may appeal to the Supreme Court on a question of law against a decision of an Appeal Panel: s 119(1). However, an appeal does not lie against an interlocutory decision of an Appeal Panel except by leave of the Supreme Court: s 119(1A).

Background

13 On 22 July 2008, the applicant requested TAFE to undertake an internal review of the conduct of which he complained (which, it will be recalled, occurred in 2004 and 2005). The relevant TAFE officer replied that TAFE would await the outcome of other applications made by the applicant before proceeding further. TAFE did not carry out an internal review within 60 days, thus entitling the applicant to apply to the ADT for review of the conduct concerned under s 53(6) of the PPIP Act. In October 2008, the applicant applied to the ADT for review of TAFE's conduct that was the subject of his July 2008 complaint.

14 It does not appear that the applicant ever asked TAFE to extend the six month period specified in s 53(3)(d) of the PPIP Act for seeking internal review of conduct complained. In any event, TAFE did not grant any extension of time.

15 On 8 April 2010, the ADT summarily dismissed part of the application on the ground that the ADT lacked jurisdiction to deal with it. The ADT reasoned as follows:

"24 The Tribunal does not have jurisdiction to review conduct where an internal review application is not lodged within the time stipulated in section 53(3)(d) of the PPIP Act and the agency does not allow further time ...

25 Accordingly, the Applicant was not entitled to lodge such a request in regard to conduct if he became aware of that conduct more than 6 months prior to 22 July 2008.

26 It is clear from the material before me that the Applicant was aware of most of the conduct to which this application relates at least as early as October 2005. At that time the Applicant lodged a complaint with Anti Discrimination Board. He was clearly aware of much of the conduct in August and September 2004.

27 In my view, the Tribunal has no jurisdiction to deal with that part of the application and accordingly it should be dismissed."

16 The ADT allowed the balance of the application to proceed. It found that the applicant had not become aware of the balance of the conduct complained of until shortly before he had applied to TAFE for an internal review of the conduct. Thus the application for internal review was made within the six months period specified in s 53(3)(d) of the PPIP Act. It followed that the ADT had jurisdiction to review this aspect of TAFE's conduct.

17 The applicant applied for leave to appeal to the Appeal Panel. The precise date of the application does not appear in the Application Book, but it was after 19 June 2009, the date the 2009 Amending Act came into force: see 2009 Amending Act, Sch 1 [5].

The Appeal Panel's Decision

18 The applicant now seeks leave to appeal from the decision of the Appeal Panel, constituted by Deputy President Magistrate Hennessy, given on 29 July 2011: JT v Technical and Further Education Commission (29 July 2011). In that decision, Hennessy DP refused leave to appeal against three decisions of the ADT, as follows:

• the ADT's summary dismissal decision of 8 April 2010;
• a decision given on 8 February 2011 in which the ADT granted the applicant access to documents sought by him, subject to certain conditions; and
• a decision given on 23 March 2011 in which the ADT set aside a summons issued by the Registrar, at the request of the applicant for the production by TAFE of certain documents: JT v Technical and Further Education Commission [2011] NSWADT 63.

19 Hennessy DP stated that it was clear that the ADT in each of the three cases was exercising an "interlocutory function" within s 24A of the ADT Act. Therefore leave was required in respect of each decision. While the applicant was late in filing his application for leave to appeal, her Honour did not wish to decide the application on that ground. However, her Honour noted that leave ordinarily will not be granted against an interlocutory decision unless it is attended with sufficient doubt or a substantial injustice might occur if leave were not granted.

20 Hennessy DP pointed out that the applicant had commenced the proceedings in October 2008, in respect of conduct that allegedly occurred in 2004 and 2005. There had been numerous interlocutory hearings and the parties had filed all material on which they intended to rely. The ADT had decided to determine the issues on the papers. The only matter preventing finalisation of the applicant's claim was the need for the ADT to hand down written reasons. In her Honour's view, TAFE would suffer significant prejudice if matters were reopened and relitigated when a final decision was imminent.

21 Hennessy DP did not consider that the summary dismissal of part of the applicant's complaint was attended by sufficient doubt to warrant the grant of leave to appeal. A summary dismissal order had been made because the ADT found that he knew of the relevant conduct more than six months before seeking internal review of TAFE's conduct. Since s 53(3)(d) of the PPIP Act provided that an application for internal review of TAFE's conduct had to be lodged within six months from the time the applicant became aware of the conduct and since TAFE had refused to extend the six month time period, the ADT had held that it lacked jurisdiction to review TAFE's conduct.

22 Her Honour considered that even though the applicant was self-represented before the ADT, he had been given a reasonable opportunity to provide information and make submissions on the relevant issues. The reasons were not attended with sufficient doubt to warrant the consideration on appeal. Moreover, no substantial injustice would result if leave were refused, even if the decision was wrong. Allowing the appeal would merely give the applicant the right to complain about alleged breaches of privacy when he was a student at TAFE in 2004 and 2005, over six years earlier.

23 The second decision concerned practice and procedure and did not affect the applicant's substantive rights because he was given access to the relevant documents. The conditions related merely to uplifting and photocopying of the documents.

24 The third decision rested on a finding that the summons was essentially a fishing expedition and the applicant had not identified any legitimate forensic purpose for seeking access to the documents. The decision was not attended by doubt and, in any event, caused no injustice to the applicant.

Reasoning

25 Both the applicant and TAFE accepted that the Appeal Panel's decision was interlocutory and that, accordingly, the applicant required leave to appeal to this Court: ADT Act, s 119(1A). In my view, the applicant has not established any basis for a grant of leave to appeal.

26 Insofar as the Appeal Panel refused leave to appeal from the ADT's decision of 8 April 2010 to summarily dismiss part of the applicant's application, the applicant has not identified any question of law to which the Appeal Panel's decision gives rise. The Appeal Panel applied orthodox criteria when refusing leave to appeal from the ADT's decision. Hennessy DP pointed out that the ADT's decision turned on a finding of fact, namely that the applicant first became aware of the conduct the subject of the application more than six months before he lodged his application for review of that conduct with TAFE.

27 In his submissions to this Court, the applicant seemed to accept that the critical question before the ADT was when he became aware of the conduct of which he complained. His complaint was that in some unspecified way the ADT had been biased or had denied him procedural fairness. The applicant put these arguments to the Appeal Panel, which found that they lacked merit. The Appeal Panel's decision does not raise any question of law that would permit a grant of leave to appeal: ADT Act, s 119(1). Nor has the applicant established that a denial of leave would cause him injustice, having regard to the fact that the ADT permitted him to pursue the balance of his application to review TAFE's conduct.

28 The applicant has not made out any basis for a grant of leave to appeal from the balance of the Appeal Panel's decision. The ADT's decisions of 8 February 2011 and 23 March 2011 concerned matters of practice and procedure. The Appeal Panel's refusal of leave gives rise to no issue of law, the only basis for an appeal to this Court.

29 In any event, we were informed that the ADT has now determined the application to review TAFE's conduct on the merits and the applicant has appealed to the Appeal Panel of the ADT against the ADT's decision. In that appeal, the applicant will be entitled to rely on any argument of law he wishes to put and he will also have the opportunity to ask the Appeal Panel to review the merits of the ADT's decision.

30 There is one further observation to be made. The Appeal Panel proceeded on the basis that the ADT's summary dismissal decision was interlocutory. The Appeal Panel seems to have taken this view because s 24A of the ADT Act defines, for the purposes of that section, "interlocutory function" to include summary dismissal of proceedings. However, s 24A is directed to the composition of the ADT (including the Appeal Panel) and provides, relevantly, that in exercising any of its interlocutory functions, the ADT may be constituted by one judicial member of the Division to which the function concerned is allocated: s 24A(2). It is by no means clear that the definition of "interlocutory function" controls the meaning of the expression "interlocutory decision" used elsewhere in the ADT Act, for example in s 119(1A).

31 That the meaning of the defined term "interlocutory function" is not necessarily co-extensive with that of "interlocutory decision" perhaps receives support from the legislative history of s 119(1A). That provision was inserted into the ADT Act by the Courts Legislation Miscellaneous Amendments Act 2002, Sch 3, cl 3.1. The second reading speech explained that the amendment to the ADT Act was part of a package of amendments designed to achieve uniformity in the statutory criteria governing entitlement to appeal to the Supreme Court from decisions of various courts and tribunals: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 23 October 2002 at 5749. The 2002 amendments adopt the phrase "interlocutory decision" as the criterion for determining whether leave is required for an appeal. The amendments do not use the expression "interlocutory function", which has its own definition in the ADT Act.

32 It may be that all the orders or decisions identified in the definition of "interlocutory function" in s 24(1A) are also "interlocutory decisions" within the accepted meaning of the latter terms. However, it is possible that the statutory definition of "interlocutory function" is wider than the meaning of "interlocutory decision". If that is so, it would seem that the need to obtain leave to appeal to the Supreme Court from a decision of the Appeal Panel will depend on whether the decision can be characterised as an "interlocutory decision", rather than whether it can satisfy the definition of "interlocutory function" in s 24A(1) of the ADT Act.

33 Nothing turns on this issue in the present case. The decision of the Appeal Panel to refuse leave to appeal from the summary dismissal of part of the application to the ADT was interlocutory. The Appeal Panel's decision did not finally determine the rights of the parties as it remained open, in theory at least, for the applicant to make a further application for leave to appeal from the decision of the ADT and to seek an extension of time for that purpose.

34 As the Appeal Panel correctly held, the applicant was required to obtain leave to appeal to the Appeal Panel from the ADT's decision because the latter involved the exercise of an "interlocutory function" as defined in s 24A(1): see s 113(2A). The Appeal Panel, constituted by a single member, had the power to refuse the applicant leave to appeal from the decision of the ADT to summarily dismiss part of his application. If it matters, the summary dismissal decision was interlocutory because it was open, at least in theory, for the applicant, even after the decision, to seek an extension of time from TAFE in relation to his complaint pursuant to s 53(3)(d) of the PPIP Act.

Orders

35 The application for leave to appeal to this Court from the decision of the Appeal Panel of the ADT must be dismissed, with costs.

**********

Decision last updated: 10 May 2012