Kelloway v Department of Customer Service trading as Registrar of Births,... [2024] NSWSC 367 | Case summary

Supreme Court of NSW|2023-10-24|Before: Lonergan J

JUDGMENT

By notice of motion filed on 19 September 2023, Sarah Kelloway seeks an order pursuant to r 42.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") that the maximum costs that may be recovered from her by the defendant in these proceedings be limited to $10,000.00.
This notice of motion was filed together with the application for leave to appeal to this Court from a decision of the NSW Civil and Administrative Tribunal Appeal Panel ("NCAT Panel") made on 22 August 2023: Registrar of Births, Deaths and Marriages v Kelloway [2023] NSWCATAP 231.
That decision involved a review of a decision made by the Administrative and Equal Opportunity Division of the Tribunal regarding an alleged breach of Ms Kelloway's privacy arising from circumstances in which the defendant had on application provided a copy of her birth certificate to a New South Wales solicitor acting for a relative of Ms Kelloway.
The defendant opposes the maximum costs order being made.
For the reasons that follow I decline to make the order sought.

The facts

The following facts are taken from the noticeably short affidavit of Sarah Kelloway affirmed 19 September 2023, and two affidavits of her solicitor Stephen Joseph Blanks, affirmed 19 September and 13 October 2023.
In January 2020, a solicitor in New South Wales wrote to the Registrar of Births, Deaths and Marriages ("the Registrar") stating that he acted for a relative of Ms Kelloway and that relative was considering taking legal proceedings against Ms Kelloway in a court in Peru relating to previous property transactions between her and her mother, Isabel Kelloway, aka Maria Isabel Schuetz Florez.
The solicitor advised that the birth certificate he sought would be important in succeeding in the legal proceedings. He confirmed that he did not act for Ms Kelloway.
In March 2020, the birth certificate was provided to that solicitor. Ms Kelloway's consent was not sought.
On 21 February 2022, having become aware that this had occurred, Ms Kelloway complained to the Registrar. An internal review under s 53 of the Privacy and Personal Information Protection Act 1998 (NSW) ("the PPIP Act") was begun but not completed within 60 days so Ms Kelloway lodged an application for administrative review with NCAT on 23 May 2022.
On 14 February 2023, the Tribunal held the Registrar had breached various provisions of the PPIP Act. The Registrar appealed and in its judgment on 17 August 2023, the NCAT Panel allowed the appeal and set aside the Tribunal's orders.
Proceedings were commenced in this Court by summons seeking leave to appeal from the NCAT Panel decision. The amended summons filed on 20 October 2023 sets out a number of errors that it is asserted are questions of law of general public importance which have not been the subject of any prior judicial consideration.
In her affidavit affirmed on 19 September 2023, Ms Kelloway stated that she works at the University of Technology Sydney in an administrative position 4 days per week earning $73,368.00 per year before tax. She stated that she is on a contract which expires at the end of the year, and if the contract is not renewed, she will need to look for alternative employment.
She is married and owns three properties with her husband - the details of which were not specified - from which they earn income but (without any supporting evidence, or any specific detail at all), Ms Kelloway asserted that "the mortgage expenses on these properties are generally more than the rental income". Ms Kelloway also deposed to a specific private expense she indicated was likely to be incurred in the near future.
No information at all was provided as to her husband's earnings or what money, if any, Ms Kelloway holds in any bank accounts nor was any information provided as to other assets she owns, either alone or jointly with her husband.
Ms Kelloway asserted that she is "concerned to manage ...exposure to potential legal costs", not that she could not pay legal costs.
Ms Kelloway asserted that unless she knows the maximum amount of legal costs she could be required to pay if unsuccessful in the proposed appeal, "and that amount is within my financial capacity to pay, I am not willing to continue these proceedings".
She further asserts that she has already incurred $23,700.00 costs in the proceedings in the Tribunal. Whether those costs have been paid, and whether they are the defendant's costs or include some aspect of costs due to her lawyers was left unclear. Ms Kelloway asserted that the "maximum amount I am willing to bear if I am unsuccessful in the appeal is $10,000.00". She does not state that she is unable to pay more than $10,000.00.
I interpolate that during the hearing the Court specifically requested counsel to take instructions as to whether further information would be provided as to the properties owned, their value, the asserted expenses and any other assets and relevant financial information, because the Court considered that what was deposed to had significant gaps.
The morning tea adjournment was provided for instructions to be taken from Ms Kelloway who was seated in Court with a man the Court inferred to be her husband. The invitation to provide more information was not taken up.
Mr Blanks' October 2023 affidavit was focussed on his view as to what would be required to ready the appeal for hearing, the likely costs incurred by both sides, and deposing to the fact that the Privacy Commissioner had filed and served a notice of motion on 26 September 2023 seeking to be joined as a defendant to the proceedings. (It was later noted in oral submissions that this application was reduced to an intervenor role).
An affidavit of Ms Nguyen, solicitor, affirmed 20 October 2023 was read by the defendant. Ms Nguyen added important detail and context regarding the NCAT proceedings. On 5 August 2022, the defendant received a document entitled "Response" from Ms Kelloway which sought compensation in the amount of $39,278.00 and listed what she considered would be the costs and disbursements associated with her defending the legal proceedings in Peru.
The written submissions filed on her behalf by Mr Blanks in the Tribunal proceedings pressed that compensation point. In the oral submissions made by Mr Blanks to the Tribunal, one purpose of the Tribunal proceedings (if not "the" purpose) was stated this way: "… the applicant legitimately seeks a determination that the respondent conduct was in breach of the Privacy Act because the consequence of that determination ought to be that the certificate that was issued cannot be used in the foreign legal proceedings".

Relevant rule and authorities

Rule 42.4 of the UCPR provides as follows: 42.4 Power to order maximum costs (1) The court may by order, of its own motion or on the application of a party, specify the maximum costs that may be recovered by one party from another. (2) A maximum amount specified in an order under subrule (1) may not include an amount that a party is ordered to pay because the party - (a) has failed to comply with an order or with any of these rules, or (b) has sought leave to amend its pleadings or particulars, or (c) has sought an extension of time for complying with an order or with any of these rules, or (d) has otherwise caused another party to incur costs that were not necessary for the just, quick and cheap - (i) progress of the proceedings to trial or hearing, or (ii) trial or hearing of the proceedings. (3) An order under subrule (1) may include such directions as the court considers necessary to effect the just, quick and cheap - (a) progress of the proceedings to trial or hearing, or (b) trial or hearing of the proceedings. (4) If, in the court's opinion, there are special reasons, and it is in the interests of justice to do so, the court may vary the specification of maximum recoverable costs ordered under subrule (1).
This is a broad discretionary power and various factors have been specified as relevant to the exercise of the discretion. The factors will vary depending on the circumstances of the case and of the plaintiff, but as noted by Preston J in Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (2009) 170 LGERA 22; [2009] NSWLEC 165 ("Caroona Coal"), these matters are not ends in themselves. The question is what is necessary to facilitate access to justice in a particular case: Caroona Coal at [31] to [36]; Nerringillah Community Association Inc v Laundry Number Pty Ltd (2018) 236 LGERA 102; [2018] NSWLEC 157 at [59] to [71] and Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864 at [6] to [13].
As with the application of any rule and the exercise of any power, the Court must seek to give effect to the overriding purpose of just quick and cheap determination of the real issues in dispute: s 56 Civil Procedure Act 2005 (NSW) ("the Act"). The Court is to follow the dictates of justice in deciding whether to make any order or direction in the management of proceedings: s 58. I bear in mind the factors set out in s 58(2) of the Act, which relevantly here include the degree of expedition with which parties have approached the proceedings, the timeliness of the application (filed with the initiating summons), the degree of difficulty or complexity of the proceedings and the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction. Section 60 is also relevant in that it requires that the Court ensure that the cost to the parties is proportionate to the importance and complexity of the subject matter in dispute.

Submissions of Ms Kelloway

Ms Ryan, counsel for Ms Kelloway, asserted that the appeal has a public interest aspect to it and so the principles surveyed by the High Court in Oshlack v Richmond River Council (1998) 198 CLR 72; [1998] HCA 11 apply. Ms Ryan argued that the NCAT Panel's decision rests on two points of statutory construction of wide import. First, that the Births, Deaths and Marriages Register ("Register") was not a "public register" within the meaning of s 3 of the PPIP Act and second, that s 25 of the PPIP Act applied to exempt the defendant from compliance with the privacy principles in ss 18 and 19(2) of the PPIP Act. Depending on how these arguments progress, further questions of the construction of the PPIP Act may arise, also of wide import, namely whether a public sector agency keeping a public register must comply with the information protection principles in ss 8 to 19, and the proper construction of ss 18, 19 and 57 of the PPIP Act.
It was submitted (somewhat feverishly) that personal details for millions of people stored in the Register maintained by the defendant are subject to "apparent confusion" as to what rules apply to protect the privacy of people to which that information relates.
Also at stake is the question of whether a person whose personal information is improperly disclosed by the defendant is entitled to "any meaningful relief" and the operation of ss 53(7) and 55(2) which may allow for compensation, apology and implementation of measures to ensure the conduct will not occur again.
The right to privacy and protection of individuals from mishandling of personal information is a wider issue. The Privacy Commissioner wishes to be involved and has made formal application to be joined and within that application has stated a concern that the NCAT Panel's construction of s 25 of the PPIP Act may have significant impact on the rights of persons under NSW privacy laws generally.
Ms Ryan also submitted that the procedural background, in which the defendant changed positions, favours exercising the discretion in Ms Kelloway's favour. Contrary positions had been taken at first instance and before the NCAT Panel regarding whether there had or had not been a contravention of the PPIP Act and whether the Register was a public register under the PPIP Act or not.
It was submitted that the case is of limited scope, being an application for leave to appeal on questions of law and so evidence will be limited and one day should be sufficient. The defendant's costs will be relatively confined. The order sought will not impede the defendant, a government organisation, which has access to lawyers to argue its case.
Other factors raised include the prompt making of the application and that the case is arguable and not frivolous or vexatious.
Another matter raised was the submission that the proceedings concern issues of "great public importance" and that although Ms Kelloway seeks to vindicate important rights for herself, she does not stand to gain financially "in any real way".
I interpolate that I harbour doubts that she does not stand to gain financially given the obvious (and previously stated) motivation includes an intention to deploy, or attempt to deploy, a decision in New South Wales to invalidate the issuing of the birth certificate and is thus an essential plank in fighting the case Ms Kelloway is facing in Peru that we know concerns an intrafamilial property transfer.
Ms Ryan submitted that Ms Kelloway would abandon the proceedings without the maximum costs order she seeks, and that she is a person of "limited income". This was submitted to be the basis upon which making the order would "promote access to justice". It was submitted that it is undesirable for proceedings raising issues of public importance to be "stultified only by fear of an adverse costs order".

Submissions of the defendant, Registrar of Births, Deaths and Marriages

Mr Lim, counsel appearing for the Registrar, submitted that there is no proper foundation to exercise the discretion in favour of Ms Kelloway in circumstances where in effect, she wishes to bring litigation but is not prepared to be bound by a costs order. He submitted that private litigation draws upon the public resources of courts and occasions involuntary costs to the defendants. A party's liability to pay costs is an important incident of a system which seeks to allocate public resource appropriately, efficiently and fairly.
There are situations where such an order is appropriate - for example "to put into the Court's hands a brake on intemperate and disproportionately expensive conduct of proceedings": Re Sherbourne Estate (No 2) (2005) 65 NSWLR 268; [2005] NSWSC 1003 at [29], or in public interest litigation where a person who does not have an individual interest in the subject matter may pursue something that has benefits that are spread widely across the community, such as in Delta Electricity v Blue Mountains Conservation Society Inc (2010) 176 LGERA 424; [2010] NSWCA 263 at [218].
Ms Kelloway's proceedings are not brought in the public interest. It is a private claim for damages pursued in an attempt to deploy a finding from this Court in a Peruvian court to resist her birth certificate from being used in litigation about intrafamily disposition of property.
The assertions as to precedential value of the NCAT Panel decision and any decision of this Court are overstated given every disclosure by the Registrar must be judged by the individual circumstances that prevail in each case.
In essence, Ms Kelloway is unwilling to pay over $10,000.00 in costs. It is not asserted, nor established on the evidence, that she is unable to pay more than that sum. In those circumstances the order is not required to ensure Ms Kelloway has access to justice.
Finally, Mr Lim submitted that the arguments about the procedural history are not persuasive nor relevant to the discretion to make the order limiting costs.

Decision

I am not persuaded that the order sought should be made.
Whilst the litigation may be thought to have some aspect of public interest, and this is a relevant, although not dispositive consideration, the reality is that the issue of the birth certificate is being pursued by Ms Kelloway to correct or manage a situation where Ms Kelloway's birth certificate was able to be used as a basis for litigation in Peru. Whilst I do not have details of that litigation, it appears at the least to affect directly or indirectly her private interest in property in that jurisdiction.
As observed during the progress of argument on 24 October 2023, in the absence of any evidence regarding income from the three properties Ms Kelloway co-owns, and the inferred refusal to provide further information about those matters, I am concerned that I am asked to act on inadequate and incomplete information about the true financial position of Ms Kelloway.
There is also some uncertainty as to the status of the costs Ms Kelloway claims to have incurred so far of $23,700.00 and whether that comprises costs due to the defendant or costs due to her lawyers whom, according to Ms Ryan are acting for her pro bono.
I consider the evidence filed in support by Ms Kelloway to be deliberately coy and incomplete as to her true financial position. I cannot consider her to be a person who is impecunious or "of limited income". There is evidence to suggest the opposite. Opportunity was given for the gaps in the financial information provided to the Court to be filled by provision of other details so that the Court could evaluate the assertion that mortgage payments exceed any rent received from the three rental properties owned by Ms Kelloway and her husband, and to provide a fuller understanding of her assets and liabilities. That opportunity was deliberately, and presumably on advice, not taken up.
I am not persuaded that Ms Kelloway could not pay costs of more than $10,000.00 should she lose the proceedings. Whilst the notice of motion is expressed in terms of "$10,000.00 or such other amount the Court considers appropriate", given the context provided to this sum by Ms Kelloway's affidavit, the reality is the order sought must be confined to $10,000.00 and no more. No other sum was proposed.
Obviously the purpose of a maximum costs order is to facilitate access to justice and access to justice can be impeded where the cost of litigation is high. The affidavits of Mr Blanks, however, provide evidence that the issues can be dealt with in short compass with written submissions and legal argument, even if the Court grants leave for the Privacy Commissioner to intervene.
In my opinion this is simply a case where, prompted by learning that her birth certificate had been obtained and deployed in litigation in Peru, Ms Kelloway sought and pursued a remedy that would have some kind of recorded justiciable outcome, that in turn could be used by her to halt, defend, or undermine the proceedings against her in Peru.
Any professed public interest considerations are in my view coincidental at best to that primary motivation.
There is nothing in the affidavit material, or in the arguments pressed on behalf of Ms Kelloway, that persuades me that access to justice is in truth impeded by refusing the order. Ms Kelloway has presented this Court with a deliberately elliptical picture of her financial situation. That was Ms Kelloway's choice. However she requests this Court to limit the defendant's costs to a very low figure, probably less than the costs it has already incurred. Pursuing the proceedings is also a choice for her to make, and one which should have the usual risks of a negative costs order if her arguments fail.
Given Ms Kelloway has advised the Court through her counsel that the appeal will not proceed if the order is not made, it is appropriate that the matter be listed before me to facilitate the entry of formal orders disposing of the appeal.

Orders

I make the following orders: 1. The notice of motion filed 19 September 2023 is dismissed. 2. The plaintiff is to pay the defendant's costs of the notice of motion. 3. The matter is listed for directions before Lonergan J at 9:30am on 18 April 2024.

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: 11 April 2024

(2010) 176 LGERA 424

(2018) 236 LGERA 102

Kelloway v Department of Customer Service trading as Registrar of Births, Deaths and Marriages

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