YX v NSW Medical Board

7 On 15 June 2009 the Respondent filed an application for dismissal along with evidence in support. The Applicant filed his reply on 26 June 2009.

8 The Respondent lodged an application with the Tribunal for an order that the application be dismissed under section 73(5)(g) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") or, in the alternative, an order that parts of the application are outside the Tribunal's jurisdiction. The Respondent also sought orders that the Applicant pay to the Respondent the costs of: a. The planning meeting held on 21 April 2009; b. The planning meeting held on 2 June 2009; c. The application for summary dismissal.

9 The matter was heard on 20 July 2009. The Applicant appeared in person and presented argument as to why his application ought not be dismissed. I reserved my decision on the issue.

10 On 14 August 2009, prior to a decision in the matter, the Applicant filed a notice of discontinuance.

11 The parties were unable to reach agreement on the discontinuance and the matter was again listed on 17 September 2009. The Respondent does not oppose the discontinuance but has sought orders for costs.

Applicable legislation 12 Section 73(5)(g) of the ADT Act is in the following terms: 73 Procedure of the Tribunal generally … (5) The Tribunal: … (g) may dismiss at any stage any proceedings before it in any of the following circumstances: (i) if the applicant (or, if there is more than one applicant, each applicant) withdraws the application to which the proceedings relate, (ii) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (iii) if the applicant (or, if there is more than one applicant, each applicant) has failed to appear in the proceedings, (iv) if the Tribunal considers that there has been a want of prosecution of the proceedings, and

13 Section 88 of the ADT Act is in the following terms: 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 by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal, or (vi) vexatiously conducting 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) any other matter that the Tribunal considers relevant. (2) The Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs. (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Tribunal, and (b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.

The Respondent's case 14 The Respondent submitted that it was entitled to an order that the proceedings should be dismissed under section 73(5)(g) of ADT Act on the grounds: a. the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance within section 73(5)(g)(ii); b. the Applicant has failed to appear in the proceedings within section 73(5)(g)(iii); and c. there has been a want of prosecution of the proceedings within section 73(5)(g)(iv).

15 In the alternative, should the Tribunal decline to dismiss the proceedings, the Respondent submitted that it was entitled to an order that part of the application is outside the Tribunal's jurisdiction.

16 In the circumstances, the Respondent submitted that it was entitled to an order for costs.

17 The Respondent relies on the evidence of its Legal Director, Ms Miranda St Hill and Ms Juliet Lucy, solicitor.

18 Ms Lucy submits that the complaints are frivolous or vexatious or otherwise misconceived or lacking in substance. She argues that a case is frivolous "if, despite whatever attempts are made to discern a cause of action in a case, it is still not arguable" and it is also frivolous "when it is without substance or groundless or fanciful": Pickering v Centrelink [2008] FCA 561 at [27], NBGZ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 434. The words "frivolous" and "vexatious" are often used interchangeably: NBGZ v Minister for Immigration and Multicultural and Indigenous Affairs at [21].

19 Further, the '"authorities make it dear that, in any case in which summary dismissal of a proceeding is sought, the focus must be on whether the case is arguable, and not upon whether it is likely to succeed": NBGZ v Minister for Immigration and Multicultural and Indigenous Affairs at [23].

20 The Respondent submits that the Applicant does not have an arguable case in respect of any of his complaints.

21 The Respondent submits that the Applicant had been aware of the psychiatric report for more than six months when he made his internal review application, received by the Respondent on 21 October 2008. The internal review application was not made within six months of the Applicant becoming aware of the conduct concerned, and so did not comply with section 53(3)(d) of the PPIP Act. The Tribunal does not have jurisdiction to review conduct where an internal review application is not lodged within the time stipulated in section 53(3)(d) of the PPIP Act and the agency does not allow further time: BQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 64 at [21]-[27]; MG v Director General, Department of Education and Training [2004] NSWADTAP 45. In this case, the Respondent made it clear that it was not allowing further time.

22 The Respondent submits that it attached a notation to the report as the Applicant had requested, and that notation remains attached to the report. For this reason, the Applicant already has the alternative relief that he seeks. Accordingly, his complaint is misconceived.

23 Similarly, the Respondent submits that the Applicant had been aware of the Royal Australasian and New Zealand College of Psychiatrists ("RANZCP") more than six months before he made his internal review application. The Tribunal therefore does not have jurisdiction to review the conduct.

24 The Respondent submits that the Applicant has provided no evidence to substantiate his claim that there is no record on the Board's file to the effect that the HCCC dismissed his claim. However, Ms St Hill's evidence is that there is a record on the Applicant's file to the effect that the Board's complaint to the Health Care Complaints Commission ("HCCC") was dismissed. As Ms St Hill's statement shows, there is a record of the HCCC" termination of the complaint in the Board minutes dated 11 November 2008. Ms Lucy submits that this aspect of the complaint is frivolous or vexatious.

25 The Respondent submits that the Applicant's complaint concerning an "Alcohol problem" is vexatious because there is no evidence to show that it has any substance.

26 The Respondent holds a document recording the referral of the Applicant to an Impaired Registrants Panel in relation to his consumption of alcohol on 21 October 1997. The Report also records that the decision to refer the Applicant to the Impaired Registrants Panel was rescinded on 28 November 2007. The Applicant has produced no evidence to show that the record is inaccurate. The Report does not allege that the Applicant still consumes alcohol.

27 The Respondent submits that the Applicant's complaint concerning disclosure is made in very general terms and that there is no evidence to suggest that the Applicant's health or personal information was disclosed by the Board to his former landlord. The Applicant has provided no evidence to support his allegations, despite repeated requests for explanation. Accordingly, the Respondent submits, the complaint is vexatious.

28 Alternatively, the Respondent submits that if the Applicant is alleging that the Respondent had disclosed certain information to his former landlord, as a new complaint this may be beyond the Tribunal's jurisdiction.

29 The Respondent submits that the Applicant's complaint regarding over-investigation of complaint not disclose conduct capable of breaching an information protection principle or a health privacy principle, so is misconceived. It says that even if it did, it is not a complaint raised in the internal review application, and is for both reasons outside the Tribunal's jurisdiction. It further says that the Applicant has provided no evidence to support his allegations that the Respondent contrived complaints about him. It says that even if he were to do so, this complaint does not relate to the alleged breach of an information protection principle or a health privacy principle, but rather is a complaint about the way the Respondent exercises its statutory functions. It is, accordingly, vexatious and misconceived.

30 The Respondent submits that the Applicant's 'Fishing Exercise' complaint also relates to the exercise of the Respondent's statutory functions. It does not allege a breach of an information protection principle or a health privacy principle, so is misconceived. It is not a complaint which was raised in the Applicant's internal review applications so is, in any case, beyond the Tribunal's jurisdiction.

31 The Respondent submits that the proceedings should be dismissed pursuant to section 73(5)(g)(iii) of the ADT Act, on the basis of the Applicant's failure to appear.

32 The Respondent submits that the Applicant constructively failed to appear at the first planning meeting held on 21 April 2009 and that the Applicant failed to appear in person or through a representative on 2 June 2009.

33 The Applicant's failure to appear twice, in circumstances where his claim appears to be without merit and where he has failed to respond to the Respondent's requests for clarification of his claim, constitutes grounds for dismissal.

34 The Respondent submits that the proceedings should be dismissed pursuant to section 73(5)(g)(iv) of the ADT Act, on the basis of the Applicant's failure to prosecute the proceedings. It says that the Applicant's internal review applications were not particularised and did not make clear, in relation to most of complaints in the applications, what alleged conduct the Applicant sought to have reviewed, and how such conduct was said to contravene the privacy legislation. He failed to clarify the scope and nature of his internal review applications, as he was requested to do by the Respondent before the internal review determinations were made.

35 The Respondent submits that the Applicant failed to respond to a letter from the Respondent's legal advisers seeking particulars of his claim before the planning meeting of 21 April 2009. He failed to comply with the Tribunal's direction to file and serve particulars of his claim by 8 May 2009. His failure to provide instructions to his legal representative at the planning meeting of 21 April 2009, his failure to cooperate with the Respondent's legal advisers in clarifying the scope and nature of his claim, and his failure to appear at the planning meeting of 2 June 2009, collectively constitute a failure to prosecute the proceedings.

36 In regard to its application for costs, Ms Lucy submitted that that it is fair to award costs to the Respondent, having regard to the following: - The Applicant's failure to comply with the Tribunal's direction to particularise his claim unnecessarily disadvantaged the Respondent because it prolonged the proceedings, occasioned the Respondent further costs, and made it difficult for the Respondent to resolve the matter. - The Respondent submits that the Applicant vexatiously conducted the proceedings in the following ways: a. By pursuing complaints which he had already made to the Board years before despite knowing, through previous claims made in the Tribunal, that the Tribunal does not have jurisdiction to deal with claims made six months after the Applicant became aware of the alleged conduct; b. By failing to respond to the Respondent's request to clarify the matters the subject of his applications prior to the first planning meeting (in the context of not having clarified his internal review application when requested to do so); c. By failing to provide any instructions to the legal representative attending the first planning meeting; d. By failing to comply with the Tribunal's direction to particularise his claim; e. By copying a facsimile addressed to his legal representative to the Respondent's legal representative, as if this either constituted a response to the Respondent's request far clarification or compliance with the Tribunal's direction; f. By failing to attend the second planning meeting; g. By sending vexatious emails to the Respondent's legal representative, particularly those stating that he was going to write a psychiatric report about the legal representative and send it to the Legal Services Commissioner; and h. By twice informing the Respondent's legal representative that the proceedings will be "subsumed" into other, larger proceedings, then indicating that he had no intention of discontinuing the present proceedings. - The Respondent submits that the Applicant unreasonably prolonged proceedings due to factors including the Applicant's failure to appear, failure to particularise his claim and failure to cooperate. - The Respondent submits that the Applicant's claims are weak, and many are either outside of the Tribunal's jurisdiction or do not disclose a cause of action under the privacy legislation. - The Respondent submits that the Applicant is an experienced litigator in the Tribunal, and is familiar with the privacy legislation and the need to comply with the Tribunal's directions. It submits that it is also relevant that the Applicant has failed to comply with the Tribunal's directions on previous occasions.

37 Ms Lucy submits that the Respondent has already been put to significant time and expense in dealing with the Applicant's internal review applications, and previous Tribunal applications made by the Applicant in which the Applicant raised some of the same issues raised again in these proceedings. Ms St Hill's evidence is that the Respondent has incurred $7,700 in legal costs in relation to the Applicant's internal review applications and $7,854 in relation to these proceedings.

38 Ms Lucy submits that a substantial amount of the costs of these proceedings relates to attendance at planning meetings which did not achieve any purpose due to the Applicant's non-attendance or constructive non-attendance, dealing with vexatious correspondence from the Applicant and seeking particulars which have not been provided. She says that the Respondent is a small agency, with limited resources. In this context, the Respondent submits, it is appropriate that the Applicant pay the Respondent's costs.

The Applicant's case 39 The Applicant denies that the proceedings are "frivolous" or "vexatious" or that there were no arguable matters to resolve. He submits that the Respondent has acted upon some clarifications and suggestions made by the Tribunal and the Privacy Commissioner and that these were positive outcomes.

40 The Applicant submits that that fact that some clearly useful outcomes have been achieved contradicts the Respondent's contention that the entire proceedings were brought on frivolously and vexatiously, and that there was no point to them.

41 He contends that this also raises an important 'costs' issue as to why the Respondent could not have acted similarly and previously by itself. He says that unnecessary costs to the community and to himself could easily have been avoided through the Respondent's common sense and co-operation. The matters were finally and easily resolved, and could have been resolved earlier if there was a will to do so.

42 The Applicant further submits that recent events have given rise to the opportunity for relevant issues to be raised in other proceedings in another division of this Tribunal and that in the circumstances it is appropriate that all issues be aired in those proceedings.

Discussion 43 The remaining issue in these proceedings is whether an order for costs should be made. In order to determine that issue it is necessary that I form an opinion in regard to the Respondent's application for dismissal of the proceedings. In order to do so, it is necessary that I form an opinion of whether the Applicant's case was arguable. I note that the Applicant has discontinued the proceedings and consequently evidence and argument has not been presented on the substantive issues.

44 In most cases, section 88 of the ADT Act deals with question of costs which arise for determination from and after 1 January 2009. The Tribunal has, on a number of occasions, already dealt with the operation of that section. The most recent matter dealing with the issue is Rucom Pty Ltd and Anor v Multiplex & Ors [2010] NSWADT 1.

45 In the present matter the Respondent's case is largely that the proceedings should not have been commenced in the first place. In regard to that issue, it is my view that it is sufficient that I form an opinion of whether the Applicant had an arguable case.

46 Judicial Member Molloy observed at paragraph [37] of Rucom: 37 … proceedings should only be commenced in this Tribunal after very careful consideration of the merits of the case: see Trust Company of Australia Ltd v. Craig [2005] NSWADT 65 at [44]. After all, commencing proceedings without such consideration inevitably results in considerable expense being incurred by the other party and one might not unreasonably ask: "why should the other party have to bear those expenses when the proceedings should not have been commenced in the first place?"

47 For present purposes, if the Applicant did not have an arguable case, the proceedings should have been dismissed. Several Tribunal decision have found that commencing proceedings, or (indeed) maintaining those proceedings when the prospects of success were, at all times, minimal or non-existent, would provide a basis for an order for costs: see Rucom at paragraph [55].

48 In this regard I do not agree that the Applicant's case was totally without merit. I generally agree with the respondent's case. In particular I agree with Ms Lucy that, prime facie, the Tribunal has no jurisdiction to deal with much of the Applicant's case. However, it is my view that there was some merit in the Applicant's case insofar as it concerns the psychiatric report. In my view, it is not in dispute that the Applicant had been aware of the psychiatric report for more than six months when he made his internal review application, received by the Respondent on 21 October 2008. The issue in dispute concerns the Respondent's lack of action in regard to the psychiatric report. I do not agree that the Applicant's case was out of time in regard to that issue. Nor was it without merit.

49 I note the Applicant's submission that the Respondent has taken some action in regard to that report as a result of these proceedings and that if it had done so earlier the proceedings may have been avoided. In my view there is some merit in that argument.

50 For that reason, it is my view while the Respondent's dismissal application would have resulted in dismissal of much of the Applicant's case, it would not have been totally successful.

51 In the circumstances, it is my view that the Applicant should not be required to pay the Respondent's costs insofar as they relate to the dismissal application.

52 However, I agree with Ms Lucy that the Applicant should pay the Respondent's costs in regard to the planning meeting held on 21 April 2009 and the planning meeting held on 2 June 2009.

53 I agree that the planning meeting held on 21 April 2009 was of little value in progressing the matter because of Mr Duong's lack of instructions. The Respondent incurred costs in attending the planning meeting and it is my view that the Applicant should pay those costs.

54 Similarly, the matter was not progressed by the planning meeting held on 2 June 2009 because there was no appearance on behalf of the Applicant at that planning meeting. The Respondent incurred costs in attending the planning meeting and it is my view that the Applicant should pay those costs.

55 I note the Applicant's argument that the Tribunal and the Privacy Commissioner raised issues at those meetings and made suggestions that resulted in resolution of some issues. Notwithstanding that argument, it is my view that the Applicant could have prevented most of the Respondent's costs in attending the planning meeting if he had complied with the timetable previously set.

56 In my view, it is fair to award costs in relation to each of the planning meeting.

Order The Applicant is to pay the costs of the Respondent, as agreed or assessed, in regard to the planning meetings held on 21 April 2009 and 2 June 2009.

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.