Altaranesi v Sydney Local Health District

Judge K P O'Connor, President File Number(s): ADT 109053

Judgment 1BASTEN JA: At the end of the hearing on 2 April 2012, the Court made the orders noted above, but reserved its reasons, which now follow.

Procedural background 2The present application is the latest step in a saga of litigation commenced by the applicant following determination of his employment by the respondent as a cleaner at Royal Prince Alfred Hospital in January 2009. His dismissal led to various proceedings in the Industrial Relations Commission and in this Court, which are recounted in Altaranesi v Industrial Relations Commission of New South Wales [2011] NSWCA 351, delivered on 18 November 2011. 3In July 2009 he raised separate issues concerning compliance by his former employer, then known as Sydney South West Area Health Service, ("the agency") with the Privacy and Personal Information Protection Act 1998 (NSW) ("the Privacy Act") and the Health Records and Information Privacy Act 2002 (NSW), ("the Health Records Act"). On failing to obtain a satisfactory response from the agency, he sought review of its conduct in the Administrative Decisions Tribunal. On 20 April 2010, the Tribunal made orders in respect of a number of preliminary matters, reasons being delivered on 1 June: KT v Sydney South West Area Health Service [2010] NSWADT 131. In its substantive decision, handed down on 14 September 2010, the Tribunal found there had been no contravention by the agency of the relevant legislation: KT v South West Sydney Area Health Service [2010] NSWADT 227. 4On 7 October 2010, the applicant lodged a notice of appeal with the Appeal Panel. On 18 March 2011, an Appeal Panel constituted by President O'Connor DCJ, K Fitzgerald and Z Antonios, dismissed the applicant's appeal: KT v Sydney Local Health Network (formerly Sydney South West Area Health Service) [2011] NSWADTAP 10. A further application with respect to costs was dealt with by the President on 28 September 2011: KT v Sydney Local Health District (formerly Sydney Local Health Network)(No 2) (Costs) [2011] NSWADTAP 42. 5The applicant now seeks leave to appeal in respect of both the substantive decision of 18 March and the decision as to costs of 28 September 2011. The summons seeking leave to appeal was filed on 18 November 2011. The applicant accepts that leave is required in respect of the substantive decisions because a purported appeal would be long out of time. He contends that the challenge to the decision as to costs was filed within time, but leave is required because it is a decision as to costs only and the challenge is not merely consequential on the outcome of the challenge to the substantive decisions. (In the absence of a notice of intention to appeal, it too appears to be out of time, though by less than three weeks, and some step appears to have been taken on 5 October 2011, within time.) 6Although no affidavit was relied on with respect to the substantive appeal, the applicant stated that he filed a notice of intention to appeal within time, on 31 March 2011, but appears to have allowed it to lapse whilst awaiting a copy of the transcript in the Tribunal and a decision as to costs. Although neither of those are sound reasons for extending time by themselves, it is convenient to deal with the application for an extension of time by reference to the substance of the matters sought to be raised. 7There was also some separate confusion raised as to the proper procedure following the decision as to costs. The applicant made reference in his summary of argument to the following provision in the Administrative Decisions Tribunal Act 1997 (NSW) ("the Tribunal Act") as a basis for obtaining relief without the constraints imposed by the Uniform Civil Procedure Rules: "122 Effect of Act Nothing in this Act (except section 123) affects the power of the Supreme Court, in the exercise of its original jurisdiction, to review the decisions of the Tribunal." 8Whilst the purpose and language of s 122 is not in doubt, it is in a form which is apt to mislead a lay person, and perhaps some lawyers. The exercise of review in the original jurisdiction of the Court is to be understood as distinct from the rights of appeal granted by the Tribunal Act. Review is undertaken in the supervisory jurisdiction of the Supreme Court, which is part of the inherent jurisdiction of the Court as the superior court of record with general jurisdiction in this State. The jurisdiction is now given statutory effect, primarily by s 69 of the Supreme Court Act 1970 (NSW). Section 123 of the Tribunal Act sets out the discretionary power of the Court to refuse to review a decision if an alternative remedy, such as an internal appeal to the Appeal Panel, or a statutory right of appeal from the Appeal Panel, is available and provides an adequate remedy. 9The right of appeal to this Court against a decision of the Appeal Panel is restricted to an appeal on a question of law: Tribunal Act, s 119. It is not narrower in its scope than the forms of review in the Court's supervisory jurisdiction. The proper respondent to an appeal is the agency; the Tribunal is not a proper party in the Court's appellate jurisdiction. 10The summons filed by the applicant (which ran to 69 paragraphs) was discursive in form and, whilst referring to "denial of procedural fairness" and "actual bias" on many occasions, did not identify circumstances which could reasonably be understood to fall within those categories of legal error. Much of the applicant's argument was directed to matters which arose prior to the hearing before the Appeal Panel, but could only be relevant to the extent they revealed legal error on the part of the Panel. Further, there was a high degree of repetition.

Challenge to substantive judgment 11The Appeal Panel dealt with the proceeding before it by reference to three categories of error. First, it addressed a number of interlocutory decisions made by the single member of the Tribunal. Those included a decision to deal with the matter on the papers; a refusal to issue a summons to the Burwood Local Court, and a refusal of the member to disqualify himself on the ground of bias: decision at [16], where the issues are set out more fully. The Appeal Panel noted that these issues required leave as they were the subject of interlocutory decisions and the appeal was out of time. Leave was refused: at [33]. The Appeal Panel also noted that each of the decisions involved a discretionary judgment on a matter of procedure and that the applicant did not have an arguable case in respect of the decisions made: at [24] and [31]-[32]. 12The second part of the appeal addressed questions of law with respect to which the single member was said to have erred. The issues raised require some reference to the nature of the dispute. 13The substantive issues underlying the case involved various procedural steps taken by staff of the respondent around the time of termination of the applicant's employment at Royal Prince Alfred Hospital. This followed complaints by an administrative officer (identified as Ms Y) who said she had been intimidated by the applicant's conduct on more than one occasion. The officer's husband (referred to as Mr Z) also worked at the hospital. After a further complaint of intimidating conduct, Mr Z confronted the applicant. A fight broke out and the applicant suffered a fractured nose, bleeding and bruising: at [41]. Ms Y took out an apprehended violence order against the applicant. Following investigation, the applicant was dismissed: [42]. A charge was laid against Mr Z, which was heard at Burwood Local Court, but was dismissed, the magistrate finding that the husband had acted in reasonable self-defence: [43]. 14The first complaint related to disclosure of documents by the hospital to the lawyer for the husband, without compulsion. The Tribunal found that a number of documents were supplied prior to the issue of a subpoena, but they were documents created by Ms Y or sent to her and that she had released them on her own behalf, her conduct not being that of the agency: [46] and [47]. In dealing with the question of law raised by this ground, the Appeal Panel stated at [48]: "The records were those of Ms Y even though many of them were copies of records also officially held by the agency. It is not unusual for work facilities to be used on occasions for personal purposes by staff. In this instance that occurred. The use by a staff member of a telephone for a personal message (or in this instance a fax) does not by that fact alone turn the conduct into conduct of the agency subject to privacy laws. The Tribunal's decision properly applied the relevant principles, and appropriately referred to leading cases such as Director General, Department of Education and Training v MT [2006] NSWCA 270." 15The next issue concerned a complaint that the hospital had forwarded documents in response to a summons to produce, but which fell outside its terms. The Appeal Panel appears to have reviewed the documents itself, holding that they "clearly fell within the scope of the summons": at [50]. 16There were other separate matters of disclosure in relation to contact between the hospital and the police which were addressed by the Appeal Panel but do not need to be set out here. 17Finally, the applicant complained about a document disclosed to his wife who had been a patient at the hospital. The document was a final report in respect of an earlier complaint which the applicant had purported to lodge on behalf of his wife and himself jointly in September 2008. The Appeal Panel noted that the single member had dismissed the matter before him on the basis that consent to the release of personal information to each other, even where that information might not otherwise have been known to them, was to be implied from the making of a joint application: [65]. The Appeal Panel noted that, whilst it agreed with that analysis, the agency was in any event under an obligation to notify both applicants of the outcome of the complaint: [64]. 18Somewhat opportunistically, the applicant also argued that although he had purported to complain on his wife's behalf, she had not in fact authorised the complaint as the agency knew. He relied on an affidavit of his wife, not referred to by the single member. In fact that document was ambivalent, the deponent stating, "I applied for Internal Review ..." and two sentences later, when referring a telephone call (apparently from the reviewer) taken by the applicant, saying she could not give written authority to him to act for her. This did not suggest that the complaint was made without her authority, but rather the contrary. Nor did it demonstrate that it was not a joint complaint. 19The submissions in this Court did not establish that any of these matters had been dealt with erroneously in law by the Appeal Panel. 20Finally, the applicant challenged the refusal of the Appeal Panel to grant leave to extend the appeal to a reconsideration of the merits of the case. It did so on the basis of the "close and careful consideration" given by the single member to all the circumstances. The member did so without errors of law and the Appeal Panel considered that "[t]here needs to be an end brought to this dispute": at [70]. 21No error of law was committed by the Appeal Panel in coming to this conclusion. It involved an evaluative judgment, based not only on the Panel's understanding of the issues in dispute, but its place in the statutory scheme for review of decisions of government agencies and its confidence in the manner in which the issues had been dealt with below. No lengthy reasons were required to justify such a ruling. 22No arguable case of legally erroneous decisions having been made good, the application for an extension of time within which to appeal should be rejected.

Challenge to decision as to costs 23In respect of costs, the substantive application before the Appeal Panel having been dismissed, the Tribunal did not accept that there had been any conduct on the part of the agency which would have warranted an unusual order in the circumstances of the case. Accordingly the applicant had no reasonable prospects of receiving an award of costs in his favour. 24In respect of the agency's application for costs, the President of the Tribunal, sitting alone, after setting out the relevant legal principles, stated at [22]: "As 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." 25The judge proceeded to make an order for costs against the applicant: [23]. However, to avoid further disputation, he proposed to quantify the award. Not having before him details of the costs sought by the agency, he adjourned the application to allow that material to be supplied. On 31 October 2011 those costs were fixed at $4,500: KT v Sydney Local Health District (No 3) [2011] NSWADTAP 49. There is no suggestion that the amount was not a fair and reasonable amount in the circumstances outlined. 26The applicant sought to contend that it was not possible for the Appeal Panel to award costs without reviewing the merit of the case. That argument is misconceived. The costs before the Appeal Panel were to be determined on the basis of the arguments presented to it, not on some abstract assessment of merit. Secondly, the applicant contended that the proceeding had not been "unreasonably prolonged" by him, the hearing taking approximately two hours. However, the costs incurred in proceedings, whether in a tribunal or a court, are not readily assessed solely by reference to the length of the hearing. The judgment of the Appeal Panel demonstrated the width of the issues raised. (A similar point might be made with reference to the present application before this Court.) The point does not demonstrate error on the part of the Tribunal. 27Separately, the applicant relied upon the failure of the President to apply the terms of s 88 of the Tribunal Act. Perhaps surprisingly, there was confusion in the reasons for decision in this regard. The power of the Tribunal to award costs is contained in s 88 of the Tribunal Act, which so far as presently relevant provides as follows: "88 Costs (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. (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 ... (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, ... (e) any other matter that the Tribunal considers relevant." 28In the course of his reasons, the President wrongly referred to this provision as s 88 of the Privacy Act. Not only is there no s 88 in that Act, but the Privacy Act does not contain any provision with respect to costs of proceedings in the Tribunal. 29The President also referred to s 55 of the Health Records Act, which does make provision for costs in the Tribunal. That section also provides that each party is to bear his, her or its own costs, unless the Tribunal is satisfied "that there are circumstances that justify it" making some other order. No criteria are specified for the exercise of that power. 30There is reason to suppose from the structure of Part 6, Div 2 of the Health Records Act, within which s 55 appears, that it does not apply to proceedings before the Appeal Panel: see, s 57, which provides that an order or decision made by the Tribunal "under this Division" may be appealed to the Appeal Panel. In any event, the discretionary power imposed by s 55 is not limited by specified criteria and is not more restrictive than s 88 of the Tribunal Act, which the President did apply (although he ascribed it to the wrong source). The error of ascription was, in the circumstances, immaterial. 31The application for leave to appeal with respect to the decision as to costs was therefore dismissed and the applicant ordered to pay the costs of the second respondent, the agency, in this Court. 32SACKVILLE AJA: I agree with Basten JA.

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