Civil and Administrative Tribunal New South Wales Medium Neutral Citation: EJE v Western Sydney Local Health District [2021] NSWCATAP 247 Hearing dates: 25 June 2021 Date of orders: 26 August 2021 Decision date: 26 August 2021 Jurisdiction: Appeal Panel Before: A Britton, Principal Member Emeritus Prof G Walker, Senior Member Decision: (1) Leave to appeal is refused. (2) The appeal is dismissed. (3) The Respondent's application for costs is dismissed. Catchwords: ADMINISTRATIVE LAW — Particular administrative bodies — NCAT — administrative review of decision made under the Privacy and Personal Information Protection Act 1988 (NSW) PROCEDURE — dispensing with requirement to hold a hearing — precondition to exercising power to conduct hearing "on the papers" as permitted by s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) COSTS — special circumstances — whether discretion to award costs should be exercised Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Privacy and Personal Information Protection Act 1988 (NSW) Government Information (Public Access) Act 2009 (NSW) Health Records and Information Privacy Act 2002 (NSW) Cases Cited: Alchin v Rail Corporation NSW [2012] NSWADT 142 BPU v NSW Trustee and Guardian (Costs) [2016] NSWCATAP 87 CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 EJE v Department of Communities and Justice [2021] NSWCATAD 96 EJE v Registrar of Births, Deaths and Marriages [2021] NSWCATAD 92 EJE v Service NSW and Commissioner for Fair Trading [2021] NSWCATAD 62 EJE v Western Sydney Local Health District [2021] NSWCATAD 84 eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 Feng v OzWood (Australia) Pty Ltd [2020] NSWCATAP 42 Nguyen & Anor v Perpetual Trustee Company Ltd; Perpetual Trustee Company Ltd v Nguyen & Anor (no 2) [2016] NSWCATAP 168 The Owners Corporation of Strata Plan 4521 v Zouk & anor [2007] NSWCA 23 Texts Cited: Nil Category: Principal judgment Parties: EJE (Appellant) Western Sydney Local Health District (Respondent) Representation: Solicitors: Appellant (Self-Represented) Crown Solicitor (Respondent) File Number(s): 2021/00094491 Publication restriction: Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013, the disclosure and or publication of the name of EJE is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2021] NSWCATAD 84 Date of Decision: 31 March 2021 Before: P Molony, Senior Member File Number(s): 2020/00301046 REASONS FOR DECISION 1. In January 2020, EJE made a complaint to the Western Sydney Local Health District (the Agency) under the Privacy and Personal Information Protection Act 1988 (NSW) (the Privacy Act) about medical records, held or thought to be held by the Agency, relating to her and her children. Dissatisfied with the Agency's response to her complaint, termed an "internal review", on 20 October 2020 EJE filed an application for "administrative review" (the Application) with the NSW Civil and Administrative Tribunal (NCAT). The Tribunal found that that application was made out-of-time and dismissed it for want of jurisdiction: EJE v Western Sydney Local Health District [2021] NSWCATAD 84 (the Decision). 2. Central to the Tribunal's decision was the date EJE was notified of the result of the internal review. The Tribunal found that EJE was taken to have been notified on 6 April 2020, not on 23 October 2020, as she claimed. The Tribunal concluded that the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules) required EJE to lodge the Application by 5 May 2020 and therefore it was out-of-time by about five months. The Tribunal went on to conclude that it lacked jurisdiction and dismissed the Application under s 55(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 3. EJE now appeals from the Decision. She disagrees with the central finding made by the Tribunal that she was notified of the result of the internal review on 6 April 2020. She says that the Tribunal's decision was wrong. The Agency disagrees and contends that the appeal is misconceived and lacks substance. 4. For the reasons that follow, we have decided to dismiss the appeal. In addition, we have decided to refuse the Agency's application for costs. Grounds of appeal 1. EJE relies on two grounds of appeal: 1. "I never received any orders off NCAT requesting my consent to have matters heard on the papers." 2. "I did not receive internal review response in time frame. Respondent clearly stated only amendments could be made and no internal review would be conducted in correspondence." 1. Ground 1 relates to the decision made by the Tribunal to dispense with a hearing and to determine EJE's application "on the papers" in the absence of the parties. That decision is in the nature of an "interlocutory decision" and EJE requires leave of the Appeal Panel to appeal: s 80(2)(a) of the NCAT Act. 2. Ground 2 relates to the decision made by the Tribunal to dismiss EJE's application for lack of jurisdiction. That decision is an "ancillary decision" and therefore EJE has a right to appeal that decision on any question of law, or on any other grounds, with the leave of the Appeal Panel: s 80(2)(b) of the NCAT Act. Ground 1: determination on the papers 1. This ground is based on the premise that the Tribunal failed, as required by s 50 of the NCAT Act, to give EJE an opportunity to make submissions about its proposal to dispense with a hearing. 2. Section 50 of the NCAT Act provides that "a hearing is required for proceedings in the Tribunal" except in specified circumstances, which include where the Tribunal makes an order dispensing with a hearing: s 50(1)(c). To exercise the power to dispense with a hearing the Tribunal must be 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": s 50(2). 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: s 50(3). In these reasons, in describing a hearing conducted pursuant to s 50(2) we will use the commonly used term, "on the papers". 3. On 24 November 2020, the Tribunal directed the parties to make submissions on the question of whether, as asserted by the Agency, the Application was out-of-time. In addition, the Tribunal directed the parties to indicate "whether the issues for determination of the [Agency's] dismissal application … can be adequately determined in the absence of the parties by considering the written submissions and the material lodged and provided to the Tribunal". That is, the Tribunal invited the parties to make submissions as to whether the matter could be heard on the papers. The Tribunal's file records that a copy of the directions made on 24 November 2020 were sent to both parties. 4. In submissions filed on 14 December 2020, the Agency stated that it supported the Application being heard on the papers. In submissions filed on 21 December 2020, EJE addressed the question of whether the Application was made out-of-time but not whether that Application should be determined on the papers. 5. EJE's claim that the Tribunal failed to give her an opportunity to comment on whether the matter could be determined on the papers is unsupported and contradicted by the objective evidence. In submissions filed on 21 December 2020 and in the Notice of Appeal filed on 1 April 2021, EJE attached a copy of the directions made by the Tribunal on 24 November 2020, which included the direction inviting the parties to make submissions as to whether the matter could be heard on the papers. In the hearing of the appeal, EJE was unable to explain the apparent discrepancy between her claim of not being invited to comment on whether the Application should be determined on the papers and the evidence that by at least 21 December 2020 she had in her possession a copy of the directions made by the Tribunal, which contained that invitation. 6. The premise on which this ground rests is not established. Leave to appeal is refused. Ground 2: application for administrative review out-of-time 1. EJE contends that the Tribunal made a mistake of fact in finding that the Agency notified her of the result of the internal review on 6 April 2020 not, as she claimed, on 23 October 2020. The Agency disagrees. Statutory framework 1. The Health Records and Information Privacy Act 2002 (NSW) (the HRIPA Act) establishes the "Health Privacy Principles", which are set out in Schedule 1 to that Act. The principles relate to, among other things the collection, management, and accuracy of "health information". 2. A person who is aggrieved by the conduct of a public sector agency, including an alleged contravention of the Health Privacy Principles, is entitled to seek review of that conduct by the agency concerned (described as an "internal review"): ss 53(1), 53(2) of the Privacy Act and s 21 of the HRIPA Act. The internal review must "be completed as soon as is reasonably practicable in the circumstances": s 53(6) of the Privacy Act. If not completed within 60 days from the day on which the application was received, the applicant is entitled to make an application to the Tribunal for an administrative review of the conduct concerned: s 53(6) of the Privacy Act. 3. A person who has made an application for internal review and is not satisfied with the findings of that review or with the action taken by the public sector agency in relation to the application, may apply to NCAT for "administrative review" under the Administrative Decisions Review Act 1997 (NSW) for a review of the conduct that was the subject of their application for internal review: s 55(1) of the Privacy Act. 4. The NCAT Rules specifies when applications for administrative review of decisions made under the Privacy Act must be made. Rule 24(4)(a1) states: 24 ADMINISTRATIVE REVIEW APPLICATIONS (a1) in the case of an administrative review application under section 55 of the Privacy and Personal Information Protection Act 1998 --the period of 28 days after-- (i) if an internal review under section 53 of that Act is completed within 60 days from the day on which the application for the internal review was received by the public sector agency concerned--the day on which the applicant was notified of the result of the internal review, or (ii) if an internal review under section 53 of that Act is not completed within that 60-day period--the day on which the 60-day period expires or the day on which the applicant was notified of the result of the internal review (whichever is the later), … The Decision 1. After considering the terms of r 24(4)(a1) at [20], the Tribunal went on to consider the question of when the Agency notified EJE of the result of the internal review. At [21], the Tribunal referred to a copy of an email tendered by the Agency sent to EJE's (then) current email at 3:06 PM on 6 April 2020, which attached a copy of the internal review report. 2. In reaching its decision, the Tribunal considered whether s 8 of the Electronic Transactions Act 2000 (NSW) applied in this case. The effect of this provision is that where a person is required under a "law of this jurisdiction" to give information in writing, that requirement is taken to have been met if the person gives the information by means of an electronic communication, which includes email, providing certain conditions are met. Those conditions include that at the time the information was given it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference, and the person to whom the information is required to be given, consents to the information being given by means of an electronic communication: s 8(2) of the Electronic Transactions Act. 3. The Tribunal concluded that the requirements of s 8 of the Electronic Transactions Act had been satisfied, reasoning at [23]: (1) Both the HRIP Act and the PPIP Act are laws of the jurisdiction. (2) The requirement in section 55(8) of the PIPP Act that an agency, notify a review applicant of the internal review decision (which is to include reasons), is a requirement to give information within the meaning of section 8(4) and (5) of the ET Act. (3) EJE had dealt with the Agency via a combination of email and phone from the time she had first made the privacy complaint. She had notified the agency of a change of email address. That email address had been checked and verified. Other electronic correspondence had been exchanged between the Agency and EJE at that email address. (4) In those circumstances, it was reasonable for the agency to expect that the information it sent to EJE via email would be readily accessible, so as to be useable for subsequent reference. 1. Adopting that analysis, the Tribunal concluded that EJE was taken to have been notified of the outcome of internal review on 6 April 2020. Applying r 24(4)(a1) of the NCAT Rules, the Tribunal found that EJE was required to file her application for administrative review by 5 May 2020, that is, 28 days after 6 April 2020: at [26]. The Tribunal noted at [26] that EJE filed that application on 20 October 2020, more than five months late. 2. At [28] the Tribunal went on to note the extensive material provided by the Agency which showed a series of emails flowing between EJE, at her new email address, and the Agency. The Tribunal observed that there was no indication of emails going missing, breaks in the flow of communication, or of the Agency receiving a bounce-back notice for the email sent on 6 April 2020. The Tribunal stated at [28] that in those circumstances it had "grave difficulty in understanding why the email of 6 April 2020 would not have reached EJE, despite her protests to the contrary". Conclusion 1. In this appeal EJE did not challenge the Tribunal's interpretation of s 8 of the Electronic Transactions Act. Nor did she point to any evidence which might support a conclusion that there was no evidence or even insufficient evidence to support the key findings made by the Tribunal, namely that at 6 April 2020, it was reasonable to expect that the information contained in the email of that date would be readily accessible to EJE, and that she consented to the report of the internal review being given by email. 2. At [21]-[24], the Tribunal correctly identified that the question posed was whether by the operation of s 8 of the Electronic Transactions Act, EJE could be taken to have received 6 April 2020, not whether she in fact received that email. Nonetheless, while the Tribunal did not make an express finding, it is apparent it found EJE's claim that she did not receive the email to be unconvincing. 3. No error of law has been identified. Nor has EJE identified any ground which might warrant the exercise of the discretion to grant leave to appeal. Costs 1. The Agency seeks an order for costs. The Agency contends that "special circumstances" are established because: 1. the appeal had no tenable basis and was frivolous, misconceived and lacking in substance; 2. EJE was responsible for prolonging the time taken to complete the proceedings; and 3. EJE has made multiple complaints under the Privacy Act against various government agencies, where she has failed to comply with jurisdictional requirements. Principles governing orders for costs 1. Section 60 of the NCAT Act creates the general rule that each party to proceedings is to pay their own costs: s 60(1). We may only order costs "if satisfied that there are special circumstances warranting an award of costs (emphasis added)": s 60(2). Section 60(3) sets out a non-exhaustive list of factors that may be taken into account in deciding whether there are special circumstances warranting an award of costs: 60 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. 1. The term "special circumstances" is not defined by the NCAT Act. It has been interpreted to mean circumstances that are out of the ordinary but not necessarily extraordinary or exceptional. The discretion to award costs must be exercised judicially having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs. (See eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [23]-[31]; Nguyen & Anor v Perpetual Trustee Company Ltd; Perpetual Trustee Company Ltd v Nguyen & Anor (no 2) [2016] NSWCATAP 168 at [16].) Lacking in substance and misconceived 1. The terms "lacking in substance" and "misconceived" are also not defined by the NCAT Act. The former has been taken to mean "not reasonably arguable" (The Owners Corporation of Strata Plan 4521 v Zouk & anor [2007] NSWCA 23 at [45]), the latter, a "misunderstanding of legal principle" (Alchin v Rail Corporation NSW [2012] NSWADT 142 at [26]). We adopt those meanings. 2. The appeal was both lacking in substance and misconceived. EJE was either unwilling or unable to accept as found by the Tribunal that by the operation of the Electronic Transactions Act, she had been taken to have been notified of the results of the internal review on 6 April 2020. 3. In addition, she was either unwilling or unable to accept the Agency's argument of which she was notified before the hearing of the appeal, that there was no evidence to support her claim that she had not been invited by the Tribunal to make submissions about whether the Application should be determined on the papers. Responsible for prolonging unreasonably the time taken to complete the proceedings 1. The Agency contends that EJE was responsible for prolonging unreasonably the time taken to complete the proceedings, pointing to the fact that because she filed the Application five months late and initially identified the wrong respondent, that the proceedings were delayed. As a result, contends the Agency, EJE failed to comply with the duty imposed by s 36(3) of the NCAT Act, to co-operate with the Tribunal to give effect to the guiding principle of that Act, the facilitation of the just, quick, and cheap resolution of the real issues in the proceedings. 2. This argument is based on the flawed premise that where an application for costs is made in an internal appeal, the relevant "proceedings" for the purpose of s 60(3)(b) of the NCAT Act — "whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings", includes the proceedings at first instance. It is plain from its text and context that the word "proceedings" in s 60(3)(b) refers to the proceedings that are the subject of the application for costs, here the appeal, and not the proceedings below. (See, BPU v NSW Trustee and Guardian (Costs) [2016] NSWCATAP 87 at [28]; Feng v OzWood (Australia) Pty Ltd [2020] NSWCATAP 42 at [13]). Multiple complaints under the Privacy Act against various government agencies, where she has failed to comply with jurisdictional requirements 1. The Agency contends that special circumstances are established because EJE has made multiple complaints under the Privacy Act, which in the main have been dismissed because of EJE's failure to comply with jurisdictional requirements. In support, the Agency points to the proceedings below and the following: 1. EJE v Service NSW and Commissioner for Fair Trading [2021] NSWCATAD 62: The Tribunal found that EJE had not made a valid request for an internal review and dismissed her application for administrative review on the ground that it was misconceived and lacking in substance. 2. EJE v Registrar of Births, Deaths and Marriages [2021] NSWCATAD 92. The Tribunal found that EJE's application for administrative review had been filed out-of-time and dismissed her application on the ground that it lacked jurisdiction. 3. EJE v Department of Communities and Justice [2021] NSWCATAD 96. The Tribunal dismissed the application on the ground that it was misconceived and lacking in substance. 1. The Agency contends that these decisions reveal that EJE has made a large number of privacy complaints against many different agencies, leading to a significant expenditure of public funds and a significant diversion of the Tribunal's resources. 2. In addition, the Agency contends that this is likely to continue and points out EJE has foreshadowed that if her appeal is unsuccessful, she will apply under the Government Information (Public Access) Act 2009 (NSW) for the information that is the subject of her initiating application under the Privacy Act. 3. Further, the Agency points out that it wrote to EJE inviting her to withdraw the appeal, detailing its view as why the proceedings were misconceived. Conclusion 1. The issue raised is whether the discretion to award costs should be exercised in this case, where the appeal brought is misconceived, EJE has a history of making unsuccessful applications for administrative review under the Privacy Act and where she was on notice of the Agency's intention to seek costs. 2. The Agency makes a powerful argument that that these factors in combination warrant the exercise of the discretion to award costs. Nonetheless, we have decided not to exercise that discretion for the following reasons. 3. First, while plainly misconceived and lacking in substance, on the available material it could not be said that the appeal was vexatious, in the sense of being commenced by EJE to harass, annoy, or cause detriment to the Agency, or for some collateral or other wrongful purpose. 4. Second, while as the Agency points out, EJE has been unsuccessful in other applications brought under the Privacy Act, of itself that does not justify the exercise of the discretion to award costs. Further, we note that in one of the four cases on which the Agency relies, EJE v Department of Communities and Justice, EJE's application was not dismissed summarily because of her failure to comply with jurisdictional requirements. Rather, in a decision which ran to 65 paragraphs, the Tribunal considered among other things, a question of statutory construction, namely, whether information collected by the Local Court was collected in the exercise of the Court's "judicial function". 5. Third, that EJE foreshadowed that she intends to commence proceedings under the Government Information (Public Access) Act, in our view does not amount to special circumstances. This is not a case where a person whose application for administrative review under the Privacy Act was found to be unmeritorious then seeks to apply under different legislation to have the same issue re-heard. 6. Finally, the available material raises concerns about EJE's capacity to make an objective and rational assessment about the likelihood of her initiating application made under the Privacy Act achieving the outcome she seeks. In reaching that conclusion we have considered, among other things, the nature of the allegations made by EJE in correspondence with the Agency, including that during a hospital stay her placenta was "stolen" and objects were inserted into her body without her consent. 7. Nonetheless, the Agency makes a powerful argument that it has been required to expend significant resources in defending this appeal and the proceedings below, in circumstances where each have been found to be misconceived and lacking in substance. There is a public interest in the Agency's limited resources not being wasted on time-consuming and misconceived crusades. Had there been better evidence of a pattern of EJE initiating multiple unmeritorious applications under the Privacy Act we may have reached a different conclusion. 8. The Agency's application for costs is dismissed. Orders 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. The Respondent's application for costs is dismissed. ********** 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: 26 August 2021