KT v Sydney Local Health District (formerly Sydney Local Health Network) (No. 2) (Costs) [2011] NSWADTAP 42

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: KT v Sydney Local Health District (formerly Sydney Local Health Network) (No. 2) (Costs) [2011] NSWADTAP 42 Hearing dates: On the papers Decision date: 28 September 2011 Jurisdiction: Appeal Panel - Internal Before: Judge K P O'Connor, President Decision: 1. Respondent's application for an award of costs of the appeal granted, subject to the following: (A) Respondent to file and serve an account for its costs, taking note of the observations in these reasons, within 10 days. (B) Appellant to file and serve any comments on the account within a further 10 days. (C) Tribunal then to make a costs order with the amount specified. 2. Appellant's application for an award of costs not granted. 3. The appellant's application for costs in respect of the planning meeting held 20 October 2009 before the General Division is remitted to the Tribunal below, to be constituted for this purpose by Deputy President Higgins. Catchwords: Costs of appeal – applications – award to respondent – amount of order to be specified Legislation Cited: Administrative Decisions Tribunal Act 1997 Health Records and Information Privacy Act 2000 Legal Profession Act 2004 Privacy and Personal Information Protection Act 1998 Cases Cited: AT v Commissioner of Police, NSW [2010] NSWCA 131 GA v University of Sydney (No 2) [2010] NSWADTAP 53 KT v Sydney Local Health Network (formerly Sydney South West Area Health Service) (GD) [2011] NSWADTAP 10 McGuirk v Vice-Chancellor, University of New South Wales (No 3) [2009] NSWADTAP 47 Category: Costs Parties: KT (Appellant) Sydney Local Health District (Respondent) Representation: A Britt (Respondent) In person (Appellant) B Woolley (Respondent) File Number(s): 109053 Decision under appeal Jurisdiction: 9108 Citation: KT v South West Sydney Area Health Service [2010] NSWADT 227 Date of Decision: 2010-09-14 00:00:00 Before: General Division File Number(s): 093255

REASONS FOR DECISION 1APPEAL PANEL (JUDGE K P O'CONNOR, PRESIDENT): In its earlier decision in this matter, the Appeal Panel dismissed the appellant's appeal from a decision of the General Division of the Tribunal: KT v Sydney Local Health Network (formerly Sydney South West Area Health Service) (GD) [2011] NSWADTAP 10 (18 March 2011). The respondent agency, originally known as the Sydney South West Area Health Service, later the Sydney Local Health Network and now the Sydney Local Health District, has applied for its costs of the appeal. The appellant, a litigant in person, has applied for his costs. He has also referred to a 'costs reserved' decision made by the Tribunal below not addressed in that Tribunal's determination. 2A decision on costs is an 'ancillary function' of the Tribunal. Consequently, the decision may be made by one judicial member rather than a full panel. If made by the Appeal Panel, the judicial member must be a presidential member. See Administrative Decisions Tribunal Act 1997 (ADT Act), s 24(2). The Appeal Panel is constituted in that way on this occasion. 3As foreshadowed in the provisional directions, the applications have been determined without holding a further hearing, as permitted by s 76. The respondent filed its submissions on 6 May 2011, the appellant on 20 June 2011 and the respondent filed supplementary submissions responding to certain points in the appellant's submissions on 22 June 2011. 4As outlined in the earlier decision, the appellant sought review under the Health Records and Information Privacy Act 2000 (HRIP Act) and the Privacy and Personal Information Protection Act 1998 (PPIP Act) of the agency's conduct. He raised six matters (divided into Complaint 1 (five items) and Complaint 2 (one item)). 5The HRIP Act regulates personal information that falls into the category of 'health information' (a defined term); while the PPIP Act regulates 'personal information' (a defined term) that is not 'health information'. The immediate relevance of this point is that each Act has different costs provisions. In both instances the primary rule is similar. The HRIP Act, s 55 provides: (1) Except as provided by section 52 and subsection (2), each party to an inquiry is to pay his or her own costs. [Section 52 concerns summary dismissal and is not relevant to this case.] 6The PPIP Act s 88 provides: (1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section. 7In each case the provision goes on to allow the Tribunal to make an award of costs in its discretion and sets out factors to which it may have regard. 8The HRIP Act, s 55(2) provides: (2) If the Tribunal is of the opinion in a particular case that there are circumstances that justify it doing so, it may make such order as to costs and security for costs, whether by way of interim order or otherwise, as it thinks fit. 9The PPIP Act, s 88(1A) provides: (1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal, or (vi) vexatiously conducting the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) any other matter that the Tribunal considers relevant. 10Both exception provisions confer a broad discretion on the Tribunal. The discretion to award costs is to be exercised, as I see it, cautiously having regard to the access objectives that underpin the creation of the Tribunal. The privacy laws provide an important set of protections to individuals. These laws form part of the Tribunal's wider administrative review jurisdiction, a jurisdiction designed to foster accountability for government administrative decisions and conduct (see further, ADT Act, s 3). 11Consideration : Given the restrictions on legal aid and other factors, it is common for litigants in person to present in the Tribunal. They will sometimes conduct their cases in a way which is excessive and more costly for respondents than might have been the case if a lawyer had been acting on their behalf. The Parliament would, I feel, have been conscious of that possibility when setting down the basic rule. 12While a degree of latitude may be allowed for first- or one-time litigants in person who come to the Tribunal and manage their case in a fashion which is excessive and inflicts unnecessary costs on the respondent, in my view a concession of this kind should not readily be granted to an unsuccessful litigant in person who has been involved in numerous filings in the Tribunal, as is the case here. The appellant is a person who should have acquired some understanding of the need to exercise the right of appeal with care, and of the need for economy and focus in the presentation of arguments and material. 13In this case, in my opinion, the appellant adopted a scatter-gun approach to the presentation of the grounds of appeal. They read like chapter headings from a text book. Many of the grounds had no explanation, and lacked in my view any reasonable basis. 14The appeal not only challenged the Tribunal's rulings on all six items of conduct of the agency put in issue, but also raised four procedural objections to pre-hearing decisions made by the Tribunal. 15The following statements appear in the reasons for decision as to the lack of strength of the appellant's case in respect of the preliminary rulings: (i) 'In our view, there is no arguable case in relation to the Tribunal's exercise of discretion on the three matters [i.e. the decision to proceed on the papers, the refusal of a disqualification motion, the refusal of leave to issue a summons].' - at [24]. (ii) '[T]his was not a case where a s 74 preliminary conference was on foot.' - at [32] 16The following statements appear in the reasons for decision as to the lack of strength of the appellant's case to the six substantive matters, or other aspects of his case: (i) The Tribunal found that the agency was not responsible for an employee's disclosures of various documents to a lawyer for use in court proceeding defending his client (the employee's husband) in respect of an assault charge arising out a fight in the workplace with the appellant, both of whom were also employees: 'The Tribunal dealt thoroughly with the issues raised by KT, and its findings are unassailable.' - At [48]. (ii) The Tribunal found that it was lawful for the agency to disclose its investigation records that were the subject of subpoena in respect of the Court proceedings: 'The ... documents clearly fell within the scope of the summons.' - At [50]. (iii) Allegation of 'fraud' by the agency: 'There is no basis for this allegation.' - At [54]. (iv) Allegation that the agency unlawfully disclosed an investigator's report: 'The Tribunal found, reasonably, that there was no evidence of any such transaction ...'. - At [55]. (v) Disclosure by an agency officer to a police officer of background information relating to conduct by the appellant towards the employee previously mentioned that was seen as relevant to the later fight involving her husband and the appellant: 'The Tribunal properly held that the disclosures ... fell within a relevant exception to the prohibition in disclosure.' - At [58]. (vi) Alleged disclosure of his home address to the police: The Tribunal's finding of no evidence connecting the agency to any disclosure 'is unassailable'. - At [59]. (vii) Communications between the agency and the workers compensation insurer relating to the appellant after the appellant had been dismissed: That there were operative consents given by him in writing to which the fact that he had ceased employment was not relevant. - At [60]. (viii) Alleged unlawful conduct of the agency's compliance officer in disclosing the appellant's personal and health information to LN by forwarding to LN a copy of an internal review report that responded to a joint application by he and LN: 'If people make a joint application, they run the risk of cross-disclosure of personal information that may not have previously been known to one of them.' - At [64]. (ix) Further to the above, the appellant told the Tribunal that he had made the joint application without the consent of LN: That admission 'appeared to involve an admission of serious dishonesty or at the least, serious misconduct, on his part.' - At [67]. 17The agency submissions refer to the recent observations of Basten JA in AT v Commissioner of Police, NSW [2010] NSWCA 131 at [33] on the nature of the Tribunal's costs discretion. They then refer to various categories of behaviour set out in s 88(1A) into which the appellant's conduct of this appeal is seen as falling. In his submissions in reply the appellant disputes the way his conduct is depicted. 18The agency submissions refer to Appeal Panel comments that agency respondents who have had to meet their costs at first instance should receive some protection from a further round of costs in responding to a weak or hopeless appeal: see, for example, McGuirk v Vice-Chancellor, University of New South Wales (No 3) [2009] NSWADTAP 47 at [25]-[26]; GA v University of Sydney (No 2) [2010] NSWADTAP 53 at [19]. 19The agency also noted that the Tribunal's power under s 88 includes to determine by whom and to what extent costs are to be paid, and order costs to be assessed by reference to Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. The agency acknowledged that it is open to the Tribunal to make an order that it receive only part of its costs of the appeal. 20The appellant's submissions in reply largely consisted of criticisms of the reasons given by the Appeal Panel in its earlier reasons, including in respect of some of the observations about his conduct that I have noted above. 21In the course of those submissions the appellant referred to an omission on the part of the Tribunal below. The application for review was filed on 25 September 2009. The Registrar fixed the first case conference (or 'planning meeting') for 20 October 2009. The appellant attended, the agency failed to attend. No explanation for its absence appears on the file. The agency did attend on the next occasion, 4 November 2009. The Tribunal reserved the appellant's costs of attendance on 20 October 2009. The member who presided over that case conference also presided on 4 November 2009, but did not ultimately hear the matter. The 'costs reserved' decision was not addressed in the Tribunal's final decision. In my view, the simplest course is to remit the matter back to the member involved at that point (Deputy President Higgins) for resolution by way of a short telephone conference. On its face it is a narrow matter. The agency should at least give an explanation for its absence on 20 October 2009. I expect that any claims the appellant has for expenses would be small, and he would need to supply some proof. I note that the matter proceeded in the usual way as from 4 November 2009. 22As to the present applications, in my opinion the appellant brought a weak case to the Appeal Panel. He raised numerous points most of them having no merit. The decision at first instance in this case was a very thorough and comprehensive one. The appeal sought to put in issue all aspects of it, requiring the respondent to make an 'all points' detailed reply. As a result, the proceedings have been unreasonably prolonged, giving rise to unnecessary costs for the respondent and for the Tribunal. In my view, this approach imposed an unreasonable burden on the respondent. 23In my opinion, the circumstances justify an award of costs (HRIP Act, s 52(2)) and it is fair to award costs (PPIP Act, s 88(1A)). 24As to the appellant's costs application in respect of the appeal, the appellant's costs application is without merit. The agency was required to meet the appeal case as presented by the appellant. Its appeal submissions were concise, and its oral submissions at hearing were concise. 25I am inclined to make an award that specifies the amount of the costs award. Otherwise, there may well be further dispute and contention. I propose to fix the amount after considering the amount claimed by the agency. In that regard I am of the view that costs in cases of the present kind should be calculated on the basis that one lawyer need only be involved at each of the stages. (This does not mean the same lawyer.) There is little need, as I see it, in cases of this kind for two lawyers' time to be charged, as can occur when a barrister is engaged, and has an instructing solicitor in attendance; and then to have two lawyers' costs passed on to a litigant in person who has managed their case in an unacceptable way, and suffers a costs order. 26I would ask the agency to keep these observations in mind in providing its bill, and to be conservative in its estimate. I will then make a specified costs order.

Orders 1. Respondent's application for an award of costs of the appeal granted, subject to the following: (A) Respondent to file and serve an account for its costs, taking note of the observations in these reasons, within 10 days. (B) Appellant to file and serve any comments on the account within a further 10 days. (C) Tribunal then to make a costs order with the amount specified. 2. Appellant's application for an award of costs not granted. 3. The appellant's application for costs in respect of the planning meeting held 20 October 2009 before the General Division is remitted to the Tribunal below, to be constituted for this purpose by Deputy President Higgins.

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