Reasons for decision in this matter were published on 16 January 2018 (the primary decision). I decided to take no further action on the matters the subject of the applicant's claims.
These reasons deal with the respondent's application for costs. The Tribunal may award costs only if it is satisfied that there are special circumstances warranting an award of costs.
There are two issues for me to determine. The first is whether there are special circumstances warranting an award of costs. The second is, if there are special circumstances warranting an award of costs, whether I should order the applicant to pay the respondent's costs.
For the following reasons:
1. I am satisfied that there are special circumstances warranting an award of costs; and
2. I have decided that the applicant must pay 75% of the respondent's costs.
[2]
Relevant principles
The relevant costs rule appears in s 60 of the Civil and Administrative Tribunal Act 2013. 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.
The section has been considered in many cases. In Flat Glass Industries Ltd v MCS Builders Pty Ltd [2015] NSWCATAP 148 the Appeal Panel stated at [43]:
Section 60 has been considered in many recent decisions: see for instance CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21; Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120; Kurmond Homes Pty Ltd v Spiteri [2015] NSWCATAP 48; and Rose Nettis Pty Ltd v Three Tall Trees Pty Ltd [2015] NSWCATAP 51. As the Appeal Panel noted in eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48]:
The authorities considering the meaning of the expression "special circumstances" were recently reviewed in CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [23]- [31]. From those authorities, it can be seen that "special circumstances" are circumstances that are out of the ordinary, they do not have to be extraordinary or exceptional. Further, the discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs. Each situation must, of course, be assessed on a case by case basis to see whether or not special circumstances exist so as to warrant the award of costs.
[3]
Are there special circumstances warranting an award of costs?
The applicant submits that special circumstances do not exist, that all her claims had a tenable basis in fact or law, and that she is not a frivolous or vexatious litigant. She submits that her medical conditions impaired her ability to provide evidence, and that she was disadvantaged by English being her second language.
On the other hand, the respondent submits that special circumstances do exist. It points to the following matters:
1. The respondent being disadvantaged unnecessarily in the conduct of the case by the applicant's preparation of 198 pages of submissions;
2. The applicant making improper allegations of the respondent forging documents;
3. The applicant's grounds of the review being untenable in fact or being outside the Tribunal's jurisdiction;
4. The fact that the applicant is an experienced litigant in the Tribunal, having brought various previous applications. [1] The respondent submits that it is unreasonable, even for an unrepresented litigant, to persistently fail to conduct complaints in the Tribunal in an efficient, cost-effective and proportionate way.
The respondent submits that it is in the public interest for the Tribunal to take steps to ensure that the applicant and others in future like her, are well aware of the very significant cost, both to other parties and to the public purse, of inefficient and disproportionate, if not vexatious, litigation.
I am satisfied that the following matters, when considered together, constitute special circumstances warranting an award of costs.
The first is the applicant's conduct of the proceedings. I am satisfied that she conducted the proceedings in a way that unnecessarily disadvantaged the respondent (s 60(3)(a)). This was particularly manifested in the applicant's 198 pages of submissions. These submissions were extremely lengthy, generalised, apt to confuse and frequently misconceived. I accept that these 198 pages had to be reviewed in full; the evidence on which they relied analysed and instructions sought on how to respond.
This was further exacerbated by some of the submissions making no sense, or being irrelevant. As I said in the primary decision:
122. In her submissions of 17 November 2017, the applicant provides a further 15 pages of additional submissions about Complaint Six (see pp 22 to 37). Many of these submissions do not make sense, for example:
90. The Applicant has never mentioned its disclosure of the email from Ombudsman in relation with "time" (paras 261-262 to A5). However, the Applicant raised the "time" in A5 like an unpredictable attack. Therefore, the Tribunal must not review her assertions 'the Respondent should not have used on 19 August 2016'.
123. Many pages of these submissions are completely irrelevant, traversing at great length the conduct of earlier proceedings, the alleged misleading of other Tribunal members in those proceedings and Mr Flecknoe-Brown's cross-examination of CEU in those proceedings. So too are the various submissions about the tendency rule in s 97 of the Evidence Act 1995 and a Court's general discretion to exclude evidence (s 135 of the Evidence Act). Save for the exception in s 38(3) of the NCAT Act, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
The quotation from the applicant's submissions is as it appears in the submission, that is, including the grammatical errors.
In circumstances where the applicant did not file any statement of her own and relied on evidence filed in other proceedings, I accept that the respondent was disadvantaged unnecessarily in the conduct of its case by the applicant's preparation of confusing and exceptionally lengthy written submissions.
Secondly, I place some weight on the complexity of the claims made by the applicant (s 60(3)(d)). The applicant alleged that each of the Complaints offended between one and seven Information Protection Principles (see ss 8 to 19 of the Privacy and Personal Information Protection Act 1998) and Health Privacy Principles (see Sch 12 of the Health Records and Information Privacy Act 2002). To take Complaint Four as an example, this complaint involved the applicant's counseling session with a UTS psychologist. The applicant alleged that in the conduct of this counseling session the respondent breached seven Health Privacy Principles namely:
1. the collection of health information; and
2. that the information collected must be relevant, not excessive, accurate and not intrusive; and
3. that the information be collected from the individual concerned; and
4. that the individual be made aware of certain matters; and
5. that the information is about health information held by organisations; and
6. that there are limits on the use of health information; and
7. that there are limits on the disclosure of health information,
In addition to the seven breaches in respect of Complaint Four, the applicant also claimed six breaches of IPPs/HPPs in respect of Complaint Two, six breaches of IPPs/HPPs in respect of Complaint Six, and five breaches of IPPs in respect of Complaint Five. In my view, the claim of so many breaches of HPPs in relation to the applicant's complaints added unnecessary complexity to the applicant's case.
Thirdly, the applicant making unfounded or irrelevant allegations (s 60(3)(g)). There are many examples of this, including:
1. the respondent's psychologists abusing their statutory obligations and breaching the applicant's privacy under Professor Daly's instructions: submissions of 27 October 2017, pars [9] and [257];
2. security guard Mr Scott Nichols giving a false statement: submissions of 27 October 2017, par [231];
3. the respondent using an email from the Ombudsman to make a false statement: submissions of 27 October 2017, par [288];
4. the applicant's former counsel falling asleep in other proceedings and did not cross-examining witnesses properly: submissions of 17 November 2017, par [15]; and
5. the respondent's counsel conducting its case improperly.
I consider that these unfounded allegations unnecessarily disadvantaged the respondent in the course of these proceedings.
Fourthly, there is the matter of the applicant's litigation history, which is set out above at par [4] fn [1]. I accept the respondent's submission that, with such a history, it is unreasonable, even for an self-represented litigant, to conduct complaints in the Tribunal in an inefficient, costly and disproportionate way.
Fifthly, there is the issue of what the respondent describes as "vexatious claims of forgery and other impropriety". I accept that in the course of these proceedings the applicant repeatedly alleged that the respondent had engaged in forgery, or fraud, each time without evidence. For instance, in her submissions of 21 August 2017, she states:
UTS tried to cease this NCAT application by lodged an 'Application for Exercise of Enforcement Jurisdiction' with false statements and fake evidence on 26 May 2017. Disappointingly, UTS again made a forgery of the document for the section 58 bundle...
It is not surprising that the applicant finds out a forgery of a document for this proceeding. This is because UTS has made several forgeries of documents and numerous false statements during the several legal proceedings since 2015. ... The applicant assumes that UTS manipulated the form to use at the disability discrimination hearing at NCAT on 29 August 2017.
This quotation is as it appears in the submission, that is including the grammatical errors.
And, in her 27 October 2017 submissions, she claimed that:
UTS claimed the applicant's 'Contempt of Tribunal' after making the numerous forgeries of emails ... UTS used the email from Ombudsman to make a false statement in its closing submissions, which is not relevant to her first proceeding.
Furthermore, the respondent filed and served hundreds of forgeries of documents to NCAT.
The discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs. Each situation must be assessed on a case by case basis to see whether or not special circumstances exist so as to warrant the award of costs: eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48].
In my view, taking into account each of these matters there are special circumstances warranting an award of costs.
[4]
Should the applicant be ordered to pay the respondent's costs?
Even if I am satisfied that special circumstances exist, I have a discretion as to whether or not to award costs; I am not obliged to do so: Brodyn Pty Ltd v Owners Corporation - Strata Plan 73019 (No 2)[2016] NSWCATAP 224 at [21] and [24].
I acknowledge that the applicant claims that she is "mentally ill", and that she suffered disadvantage in the presentation of her case as English is her second language. I note that there was no medical evidence before me about the former matter. Similar claims were made by the applicant in Choi v University of Technology Sydney [2018] NSWCATAD 7 at [37], the Tribunal there commenting that "even if there were, the Tribunal doubts that this would be relevant to the question of costs". At [36], in remarks with which I agree, the Tribunal stated:
The general rule, that each party pays that party's own costs, promotes such accessibility, particularly to self-represented applicants such as Ms Choi. However, the object of being accessible to applicants co-exists with the object of being responsive to the needs of all users, including respondent agencies in administrative review proceedings. Where applicants pursue proceedings which are devoid of merit, and when they make allegations of serious misconduct, which are not supported by evidence, there are, as the University submitted, costs to the agency and to the public purse.
In that case, the Tribunal considered that the question of whether special circumstances warranted an award of costs was finely balanced. Ultimately, the Tribunal was not persuaded that there were special circumstances warranting an award of costs, in particular because the applicant withdrew her application at the second case conference, once some of the difficulties with the application had been explained to her.
In my view, the balance in the present application favours the respondent. This matter had three case conferences, one preliminary hearing and then the final hearing. The applicant's four sets of submissions totalled almost 200 pages, claims were made with little or no corroborative evidence. She tried to rely during the course of the hearing on evidence filed in other proceedings. The submissions underwent a number of versions, and some matters were raised by the applicant for the first time in her submissions in reply of 27 October 2017. The submissions made serious allegations including that UTS forged a document, and made false statements to the Tribunal and that its staff acted in bad faith, without a proper basis for doing so. The submissions also made allegations of misconduct by the respondent's counsel and her own former counsel.
When all these matters are considered, I am satisfied that I should order the applicant to pay the respondent's costs. As the respondent is content to limit its costs to 75% of its costs of the proceedings, my order will be limited as requested.
[5]
Order
For the above reasons, the Tribunal orders;
1. The applicant is to pay 75% of the respondent's costs as agreed or as assessed.
[6]
Endnote
These include a previous review of a privacy complaint against the respondent: CEU v University of Technology Sydney [2017] NSWCATAD 79; two reviews of decisions under the Government Information (Public Access) Act 2009 (NSW): Choi v University of Technology Sydney [2017] NSWCATAD 198; Choi v University of Technology Sydney [2018] NSWCATAD 7; a discrimination claim: CEU v University of Technology Sydney [2017] NSWCATAD 323; privacy proceedings against the NSW Ombudsman's Office: CEU v Ombudsman [2017] NSWCATAD 267 and privacy proceedings against the Northern Sydney Local Health District (No. 2017/157104).
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
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Decision last updated: 09 March 2018