On 7 December 2018 DSC lodged an application for administrative review of a decision pursuant to s 55 (1) of the Privacy and Personal Information Protection Act 1998 (the PPIP Act).
On 27 August 2019 the parties agreed on consent orders disposing of the privacy grievance. As a result of that agreement the applicant withdrew his application for administrative review in writing, and the Tribunal made orders giving effect to the consent agreement and then dismissing the proceedings in accordance with s 55 (1) (a) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act).
The applicant by letter dated 3 September 2019 made an application for costs and disbursements.
The Tribunal made orders on 24 September 2019 in respect of the costs application namely that the parties file and serve submissions on the application, including whether the matter can be determined without a hearing, and that the applicant address what specific costs have been incurred and the issue of 'special circumstances' in accordance with s 60 of the NCAT Act.
As submissions have now been received from both parties the application can be considered.
[2]
Background
The applicant is an appointed Attorney under an Enduring Power of Attorney for his mother who has been diagnosed with a cognitive impairment. The applicant was seeking to clarify matters concerning his mother's health records and made a request for Internal Review under Part 5 of the PPIP Act.
The specific issues with the health records of the applicant's mother concerned the accuracy of two documents, in that there was information that in the applicant's view was superfluous, inaccurate and irrelevant in so far as there is a requirement for personal information (including health information) to be accurate. Ultimately the matter resolved before the Tribunal to the satisfaction of both parties. Prior to the resolution of the matter there were a number of listings before the Tribunal.
The matter was listed on six occasions for various preliminary issues and settled prior to being fixed for hearing. The main reason for the number of listings concerned a preliminary issue as to whether the applicant had standing to bring the application. This was because the health information central to the review was his mother's health information and not his own health information.
The PPIP Act uses the language of 'a person, who is aggrieved by the conduct of a public sector agency' (s- 53 (1)). Section 55 (1) of the PPIP Act refers to: 'a person who made an application for internal review (being) not satisfied…'. Such a person may apply to the Tribunal for administrative review. The earlier sections concerning internal review and the definition of personal information in the various privacy principles concern a person bringing a claim based on a breach of their own privacy, not that of another person - unless they were the legally entitled to represent the other person under the privacy legislation.
After a preliminary hearing the Tribunal published a decision: DSC v South Eastern Sydney Local Health District [2019] NSWCATAD 111 on 7 June 2019 finding that the applicant was entitled to bring the proceedings, and resolved the standing issue.
It appears that following that decision and matters arising from a further Internal Review (not before the Tribunal at that time), the matter progressed and was ultimately resolved.
[3]
Hearing on the papers
Neither the applicant nor the respondent sought an oral hearing. The respondent addressed the Tribunal in submissions that the Tribunal should dispense with a hearing under s 50 (2) of the NCAT Act. The section provides:
50 When hearings are required
(1) A hearing is required for proceedings in the Tribunal except:
(a) in proceedings for the granting of leave for an external or internal appeal, or
(b) in connection with the use of any resolution processes in proceedings, or
(c) if the Tribunal makes an order under this section dispensing with a hearing, or
(d) in such other circumstances as may be prescribed by the procedural rules.
(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.
(3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first:
(a) afforded the parties an opportunity to make submissions about the proposed order, and
(b) taken any such submissions into account.
(4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.
(5) This section does not prevent the Tribunal from holding a hearing even if it is not required.
The applicant did not make any submissions on this issue. I am satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the parties' written submissions and accordingly I make an order pursuant to s 50(2) dispensing with a hearing.
[4]
Costs application
The application for costs is governed by the provisions of s 60 of the NCAT Act which provides for costs only in special circumstances.
Section 60 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 include:
(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.
[5]
The applicant's submissions
The applicant did not specifically address s 60(3) in support of his application. However it is clear from the terms of the orders of 24 September 2019 that the parties were asked to address the basis of the claim (by inference) that special circumstances have been established. Whilst the applicant did not specifically state or make a claim of special circumstances, it is necessary to examine his submissions for the basis of the application.
The applicant made submissions concerning the background to the proceedings and a claim that the proceedings arose from a lack of response or engagement from the respondent to his requests. He submitted:
1. My first request for information from the respondent was in a letter dated 6 April 2018, to which there was nil response, a second letter requesting information was sent to the respondent's legal department on 1 May 2018 to which both requests relate to the NCAT proceedings.
2. As to date, the respondent has never provided a copy of the reports that were requested, but if they had been provided, there would not have been any reason to commence proceedings with NCAT.
3. As the actions of the respondent was to both ignore and not to provide information when requested, it is only fair and reasonable the applicant should be able to claim the costs (below) in relation to having to commence NCAT proceedings on 7 December 2018.
The applicant's list of costs (which I observe is mainly in the nature of disbursements and other expenses) totals $13,406.
[6]
The respondent's submissions
The respondent's written submissions set out matters rebutting the applicant's assertions concerning the administrative handling of his requests. The respondent submitted that deciding that it was necessary to commence proceedings in the Tribunal is not a matter relevant to the consideration of special circumstances under s 60.
The respondent submitted that:
1. The applicant did not have to commence proceedings to obtain a copy of the documents he refers to, as the applicant was in receipt of the documents prior to the commencement of the NCAT proceedings.
2. Since the Tribunal determined that the applicant is an authorised representative of his mother, the respondent has no record of the applicant requesting that documents be provided to him.
3. The applicant's submissions for an award of cost are based on the conduct of the agency which was the subject of an internal review process. The applicant does not contend that the respondent has conducted proceedings in a manner in which he was disadvantaged or any of the matters listed at section 60 (2) (a)-(f).
4. The respondent submits that there is no evidence on which the Tribunal could be satisfied that the matters in section 60 (2) (a) - (f) are made out.
[7]
Consideration
To enliven the "special circumstances" under s 60 the circumstances may be out of the ordinary, but they need not be extraordinary or exceptional: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11], applying Cripps v G & M Mawson [2006] NSWCA 84 at [60].
In my view the submission of the applicant that it was necessary to decide to commence proceedings and that situation amounts to special circumstances, is misconceived. In that regard I agree with the respondent's submission at [19] above. The section concerns the conduct of the proceedings, not the basis for bringing the proceedings.
[8]
Whether the applicant was unnecessarily disadvantaged by the manner in which the respondent conducted the proceedings (s 60(3)(a))
The matter was withdrawn and dismissed prior to the filing and serving lodging of any evidence or submissions on the substantive matter. The parties and the Tribunal had dealt with material concerning the preliminary hearing on the question of standing, but in my view having examined the material and the record, there was nothing unorthodox about the manner in which that aspect was prepared and progressed.
Both parties attended (either in person or telephone) on all occasions except the Directions listing of 30 July 2019 where the Tribunal was unable to raise the applicant on the telephone. Whilst the matter was before the Tribunal for eight months I note that there was a preliminary hearing which necessitated directions and case conference listings before and after that hearing. These matters require time for making the listing arrangements including notice. Those matters do not stand against the respondent's conduct in the proceedings.
[9]
Whether any other provisions of s 60(3) apply
I am not satisfied that the other provisions of s 60(3) apply to the circumstances of this matter.
It is clear that the matter was disposed of fairly quickly once the issue of the applicant having standing was resolved. The parties' resolution of the matter at the Case Conference was facilitated by the Tribunal, without having to formally determine the merits at hearing. The respondent submitted that the outcome that the applicant achieved (by consent) was broadly consistent with their recommendation or proposal following the Internal Review. The respondent agreed to allow the comments or views of the applicant concerning the accuracy of the records to be reflected in the record.
In my view none of the matters set out in s 60 (3) are enlivened in these proceedings. The applicant's application for costs appears to focus on his out of pocket expenses and disbursements in preparing for and conducting the proceedings. In a non- costs jurisdiction a party must establish the existence of special circumstances.
Even if the matter before the Tribunal was one where a party was entitled to be awarded and paid their costs, such a matter would not arise in these current circumstances of a settlement (by way of consent orders) unless the parties included a costs aspect in the actual terms of the orders.
The applicant's claim for costs does not establish the existence of special circumstances in the manner in which the proceedings were conducted by reference to s 60 of the NCAT Act. In such circumstances irrespective of the basis for the application for administrative review (and the relative merits of that application if any) the provisions of s 60 (1) apply in that each party must pay their own costs.
I am not persuaded that there is anything out of the ordinary such as to conclude that there are special circumstances warranting an order for costs in favour of the applicant. Therefore the appropriate order is, as required by s 60(1), that each party pay its own costs.
[10]
Orders
1. A hearing on costs is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013.
2. The application by the applicant (DSC) for an order that the respondent SESLHD pays its costs of the proceedings is dismissed, and each party is to pay its own costs.
[11]
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: 22 October 2019