The applicant argued that no order as to costs should be made, as there were no special circumstances warranting an award of costs in favour of the respondent.
She said that she had at all times been unrepresented, met her own costs and never sought any costs against the respondent. She said she had little legal knowledge of the processes involved in proceedings such as these.
She said that, at all times since 2015, she has taken steps to protect and uphold her personal information held by the respondent. She said her personal information related to her dealings with the respondent, which included personally sensitive information that underlay these proceedings and formed the core of her ongoing dispute with the respondent.
The applicant explained that she had consistently complained, in her requests for internal and external review of conduct of the respondent's staff, that personal information about her and contained in documents collected and held by the respondent was false/inaccurate and based on forged documents. Notwithstanding the evidence she had provided, the applicant contended that the respondent had provided her personal information to others. This included providing that information to the Tribunal, knowing that it was false/inaccurate and contrary to the PPIP information protection principles.
She said she had sought to correct that information and in this regard requested that the relevant information be produced pursuant to a summons, which the respondent objected to and the Tribunal found to have been inappropriate to issue.
She said the respondent had offered to provide her with a redacted copy of the information (documents and reports) that was false/incorrect. However, that offer was made on the basis of her ceasing all her claims and any future claims before the Tribunal and releasing the respondent and its staff from existing and future claims.
She said, at no time did she disadvantage the respondent. Nor did she make unfounded or irrelevant allegations. She complied with the orders that were made and did not prolong the proceedings and has at all times been willing to mediate the issues of concern to her. The respondent on the other hand sought to prevent her material being placed before the Tribunal and made an application to have her applications dismissed. She said it was the respondent's application to seek consolidation of her review applications and the review applications of another two applicants that gave rise to her review applications/privacy claims in these proceedings.
In regard to the respondent's letter of 30 October 2017, she noted that this was a response to material she had filed on 14 September 2017 and that she had responded to the letter at the case management conference that was scheduled for the following day.
[2]
Consideration
As I have noted above, s 60(2) of the NCAT Act, gives me a discretion to award costs in relation to these proceedings if and only if I am satisfied that there are special circumstances warranting an award of costs.
In my opinion, the applicant cannot be described as an experienced litigator. Nor, as evidenced in these proceedings, did the applicant have any real understanding of the limits of the Tribunal's administrative review jurisdiction under the PPIP Act concerning personal information.
Nevertheless, I accept that her privacy claims in these proceedings were lengthy, as are her written submissions in this costs application. I also accept that the applicant's claim and submission can be seen to verge on being repetitious. In my view, the applicant's lengthy claims and submissions are not unusual in a first instance administrative review application, under the PPIP Act, of an applicant who is not legally trained and who is unrepresented: KT v Sydney Local Health District (formerly Sydney Local Health Network)(No 2)(Costs) [2011] NSWADT 42, at [11] and [12].
I also accept that the applicant's lengthy claims and submissions might have caused the respondent to incur some additional costs in responding to her claims in these proceedings. The extent of such additional costs has not been explained.
While I found that the applicant's privacy claims in these proceedings were misconceived, this does not mean that they were not arguable and had no basis in fact or law. The circumstances giving rise to the applicant's privacy claims was unusual, in that they arose from the respondent's application to consolidate the applicant's earlier review applications with those of another two applicants. The applicant and the other applicants (also not represented) each opposed that consolidation application and while an appeal may have been the appropriate course for the applicant to take if she was dissatisfied with the orders that were made, in my opinion this did not prevent her from making an application for internal and then external review of the conduct of the respondent in regard to that application and the orders that were made. The respondent, I note has not contended otherwise. The thrust of its application for costs is essentially that it had incurred considerable costs when the applicant's privacy claims could at no time have succeeded and the applicant was advised of this on 29 November 2016.
I note the applicant's review application that is privacy claim 5, was lodged the day after the second day of hearing of the consolidated proceedings before Senior Member Dr J Lucy: see CCM v Western Sydney University [2016] NSWCATAD 234. The applicant's review application that is privacy claim 6 was lodged after the final day of hearing before Senior Member Dr J Lucy, but before the publication of the decision and reasons for decision of Dr Lucy. That decision was published on 18 October 2016 and the issues canvased in these proceedings were not raised or dealt with in that decision.
The respondent's offer of 29 November 2016 was made subsequent to that decision and prior to the lodgement of the applicant's privacy claim 7, which was lodged on 21 December 2016.
It is well accepted that a genuine offer of settlement that is unreasonably rejected can be a factor taken into account in determining whether there are special circumstances warranting an award for costs in favour of the party who made the offer. This includes a Calderbank offer made pursuant to the principles set out in Calderbank v Calderbank. Such offers are generally made for the purpose of a claim for indemnity costs where the terms of the offer are more favourable than the ultimate outcome of the proceedings. However, having the making of such an offer does not of itself entitle the offeror to an order of indemnity costs: see Jones v Bradley (No 2) [2003] NSWCA 258.
I have some concerns about the respondent's offer of 29 November 2016. First, the offer appears to be unnecessarily adversarial in tone in circumstances where the proceedings involved review of conduct of the respondent that was externally reviewable by the Tribunal in its administrative review jurisdiction: see NCAT Act s 30, Administrative Decisions Review Act 1997, s 7 and 9 and PPIP Act, s 55.
In Perry Properties Pty Ltd v Chief Commissioner of State Revenue (RD) [2012] NSWADTAP 13, at [42] to [44], the Appeal Panel of the former Administrative Decisions Tribunal (per Judge K P O'Connor, President; S Frost Judicial Member and J Schwager, Non-judicial Member) made the following remarks in regard to orders for costs under s 88 of the Administrative Decisions Tribunal Act 1997 (as it applied at that time) in merits review proceedings:
"42 In merits review proceedings in the Tribunal, ordinarily there are no orders for costs made against losing parties. Ordinarily, review applicants do not bear any 'onus of proof'. They may, by means of the application for review, in effect, 'call in' a decision for re-examination.
43 Likewise in the Revenue Division of the Tribunal, it is most unusual for there to be any orders for costs. However, the applicant does bear an 'onus of proof'. At the objection stage, 'the objector has the onus of proving the objector's case' (Taxation Administration Act 1996, s 88) and, before the Tribunal on review, '[t]he applicant has the onus of proving the applicant's case' (s 100(3)).
44 In this case the respondent gives the appellant's failure to discharge the onus of proof as one of the reasons justifying an award of costs. In our opinion, a guarded approach should be taken to submissions of this kind. While the outcome of the case may be open to be regarded as a factor relevant to the exercise of the discretion to award costs (AT v Commissioner of Police [2010] NSWCA 131 at [33]), it should be approached mindful of the overall access objectives that the review jurisdiction of the Tribunal is intended to serve (see, generally, ADT Act, s 3, the objects clause)."
In my opinion the abovementioned remarks equally apply to s 60 where costs are sought in a first instance merits review application.
In this case, there was no onus on the applicant or the respondent under the PPIP Act. The only issue was whether the conduct of the respondent, which was not disputed, amounted to a breach of an information protection principle under the PPIP Act. As noted in s 3 of the Administrative Decisions Review Act one of the objects of that Act is to foster an atmosphere in which administrative review by the Tribunal is viewed positively.
In my view, this was not reflected in the respondent's letter of offer which alleged that the applicant's review applications that were privacy claims 5 and 6 had been made vexatiously, were an abuse of process and misconceived. The letter went on to say that it was "not necessary to discuss the University's defence in each of the PPIP Act claims" however, it was noted:
1. to date the respondent had been successful in defending each of the applicant's privacy claims;
2. the respondent considered that her privacy claims no 5 and 6 had no prospect of success because the alleged unauthorised conduct was allowed under s 25 of the PPIP Act;
3. the respondent considered her privacy claims no 5 and 6 to have been vexatiously made in an attempt to deliberately and unduly hamper it in its "defence" of those claims; and
4. that her claim was likely to be dismissed under s 55 of the NCAT Act
Of particular concern is (3) above, as in my view, on the material before the Tribunal, it cannot be said that the applicant's privacy claims were made vexatiously, or in an attempt to deliberately and unduly hamper the respondent in its "defence". I appreciate the applicant's assertions in regard to the respondent's employees and legal representatives were made forceably, but they should also be viewed in their proper context.
I accept the applicant's review applications were misconceived. Nevertheless, in my opinion, the applicant was genuinely concerned about the further disclosure of her personal information to the other applicants in the consolidated proceedings. While the respondent had explained to her, in its internal review determination, that its conduct in seeking to consolidate her review applications with those of the other applicants was permitted under s 25 of the PPIP Act and that the evidence it had filed and served in those proceedings were in accordance with the orders that had been made by the Tribunal, in my opinion, for the reasons set out above, this alone does not give rise to special circumstances warranting an award of costs in favour of the respondent.
The question is, was it unreasonable for the applicant to reject the offer that had been made by the respondent on 29 November 2016. In my opinion, for the reasons I have given above, it was not unreasonable, in the circumstances, for the applicant to have rejected the offer.
I am however, concerned about the allegations the applicant has made about the asserted intentions of specific employees and legal representative of the respondent relevant to the review applications in these proceedings. I agree with the respondent that there was no basis for such assertions. However, I do not find that these were sufficient to amount to special circumstances that warrant an award of costs on this occasion. However, should the applicant persist in making such assertions a different view might be taken in future.
I accept that the applicant has not otherwise disadvantaged the respondent in the course of these proceedings. It is unclear to me how the respondent's claim of having to quarantine its employees and its need to brief another barrister has led to disadvantage in these proceedings when there was clearly a right for the applicant to seek external review of its conduct.
Finally, for the reasons set out above, I do not find that the respondent's letter of 30 October 2017 amounts to special circumstances warranting an award of costs.
[3]
Orders
For the reasons set out above I make the following orders:
1. A hearing on costs is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013.
2. The respondent's application for costs is dismissed.
[4]
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: 19 October 2018
On 18 July 2018, I published my decision and reason for decision in regard to three review applications the applicant had made seeking review of conduct of the respondent, under the Privacy and Personal Information Protection Act 1998 NSW) (PPIP Act), concerning her personal information: see CCM v Western Sydney University (No2) [2018] NSWCATAD 205 (principal decision). The conduct the subject of the applicant's review applications was the conduct of the respondent (through its employees) and its legal representatives during the course of earlier administrative review proceedings before the Tribunal differently constituted. The earlier administrative review proceedings also involved conduct of the respondent under the PPIP Act concerning the personal information of the applicant and two other persons.
In my principal decision, I found that in respect of two applications (file no 2016/00377964 and 2016/00378375) the conduct of which the applicant complained, concerning her personal information, was permitted under s 25(b) of the PPIP Act. In my principal decision I described these applications as privacy claim 5 and privacy claim 6.
In regard to the remaining application (file no 2017/00030597), which I described as privacy claim 7, I found that the Tribunal had no jurisdiction to hear and determine that application as the Tribunal's jurisdiction had not been enlivened under s 55(1) of the PPIP Act because the respondent did not conduct or fail to conduct an internal review under s 53 of the PPIP Act. This occurred because the respondent did not exercise its discretion and accept the applicant's request for internal review which was made outside the time prescribed in s 53(3)(d) of the PPIP Act.
In my principal decision, I described the earlier review applications of the applicant as privacy claim 1, privacy claim 2, privacy claim 3 and privacy claim 4. These review applications, as I have mentioned were dealt with by the Tribunal, differently constituted.
In my principal decision I made orders for the filing and serving of evidence and submissions in regard to an application for costs that had been foreshadowed in the respondent's written submissions on the substantive matters. I also made an order that any submissions filed on costs were to include submissions on whether the issue of costs could be determined on the papers, pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
In accordance with those orders the parties filed and served submissions and evidence.
In its submissions, the respondent sought an order that the applicant pay its costs, on an ordinary basis up to 29 November 2016 and thereafter on an indemnity basis. The respondent also indicated that the issue of costs should be determined on the papers, without the need for a hearing. The applicant, in her submissions submitted that the question of costs should be determined with a hearing.
Having regard to the material filed and served, I am satisfied that the issues for determination in this application can be adequately dealt with in the absence of the parties by considering that material. The parties have provided relevant documents and set out their respective positions as to costs. Furthermore, there are no issues as to credit of the respondent's witnesses who have provided a statement and affidavit in support of the respondent's application.
Hence I make an order, in accordance with s 50(2) of the NCAT Act, dispensing with a hearing and determine the matter on the papers.
The Tribunal's power to award costs
The Tribunal's power to award costs are set out in s 60 of the NCAT Act. That section provides:
"60 Costs
(1) Each party to proceedings in the Tribunal is to pay the party's own costs.
(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.
(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have 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,
(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) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,
(f) whether a party has refused or failed to comply with the duty imposed by section 36 (3),
(g) any other matter that the Tribunal considers relevant.
(4) If costs are to be awarded by the Tribunal, the Tribunal may:
(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.
(5) In this section:
Costs includes:
(a) the costs of, or incidental to, proceedings in the Tribunal, and
(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal."
As can be seen from the terms of s 60(1), the general rule is that each party pay its own costs. A departure from this general rule may occur only if the Tribunal finds, there are "special circumstances" warranting it to do so. In determining whether there are special circumstances the Tribunal may, in the exercise of its discretion, have regard to the criteria in s 60(3)(a) to (g).
In regard to s 60(3)(f) above, the duty imposed on a party (including the legal representative of a party), under s 36(3) of the NCAT Act, is to co-operate with the Tribunal to give effect to the "guiding principle" and for that purpose participate in the processes of the Tribunal and comply with directions and orders that are made. The "guiding principle" of the NCAT Act set out in s 36(1) to facilitate the "just, quick and cheap resolution of the real issues in the proceedings" is to be applied to the practice and procedure of the Tribunal.
In Cripps v G & M Dawson [2006] NSWCA 81, at [60] Santow JA considered the meaning of the words "special circumstances" as they appeared in s 88 of the former Administrative Decisions Tribunal Act 1997. That section was in similar terms to s 60 of the NCAT Act and His Honour described the words to mean circumstances that were out of the ordinary, but they did not have to be "extraordinary or exceptional". The Tribunal has accepted that the words "special circumstances" in s 60 of the NCAT Act should be similarly described: see Megerditchian v Kurmond Homes Pty Ltd [2-14] NSWCATAP 120 at [11] and Bischoff v Sahade & Owners Corporation SP 62022 [2015] NSWCATAP 196 at [24].
It is accepted that where a party is unsuccessful in his or her application before the Tribunal, this alone will not amount to special circumstances. It also does not follow that a costs order should be made because one or more of the factors in s 60(3) are made out: see Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38, at [81]. Instead, it remains the task of the Tribunal, in the exercise of its discretion, to weigh whether those circumstances amount to "special" circumstances that justify departing from the ordinary rule that each party bear their own costs.
For the reasons set out below, on balance, I am not persuaded that the respondent has established special circumstances that warrant an award of costs.