KR v St Vincent's Hospital [2004] NSWADT 85

CITATION: KR v St Vincent's Hospital [2004] NSWADT 85 DIVISION: General Division APPLICANT PARTIES: KR RESPONDENT St Vincent's Hospital FILE NUMBER: 033329 HEARING DATES: 5/04/2004 SUBMISSIONS CLOSED: 04/26/2004 DATE OF DECISION: 05/03/2004

BEFORE: Hennessy N - Magistrate (Deputy President) APPLICATION: Costs MATTER FOR DECISION: Costs Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 LEGISLATION CITED : Freedom of Information Act 1989 High Court Rules 1952 Mental Health Act 1990 Re the Minister for Immigration and Ethnic Affairs CASES CITED: Ex parte Lai Qin (1997) 143 ALR 1 Raethel v Director General, Department of Education and Training [2000] NSWADT 56 Latoudis v Casey (1990) 170 CLR 534. APPLICANT In person REPRESENTATION: RESPONDENT T Smyth, solicitor ORDERS: The agency is to pay KR's costs in the sum of $601.50 within 28 days of the date of this decision.

REASONS FOR DECISION Introduction 1 KR was admitted to the St Vincent's Mental Health Service of the St Vincent's Hospital (the agency) under s 24 of the Mental Health Act 1990 as an involuntary patient and detained for treatment from 26 March 2003 to 30 April 2003. This is an application by him to the agency under the Freedom of Information Act 1989 (FOI Act) for his entire medical record during that period. 2 The agency's decision was to provide KR with access to the medical records with the names of all staff who treated KR deleted. The agency claimed that the names of staff was exempt information under Cl 4(1)(c) of Schedule 1 to the FOI Act because disclosure could reasonably be expected "to endanger the life or physical safety of any person." During the course of the hearing the parties came to a consent agreement that the agency would provide a full copy of the medical records to KR with no deletions. I note that the parties agreed to that outcome on the following condition: Unless required by law, or with lawful excuse, St Vincent's Hospital and KR agree that neither party will approach the other, staff of the hospital, their families or homes. 3 Despite the settlement of the substantive issue in dispute, KR made an application for costs. While the agency made an offer in relation to costs (the precise amount of which was not disclosed to the Tribunal) KR did not accept that offer. This left the Tribunal with the situation that the substantive issue had been resolved but KR maintained his application for costs. Entitlement to costs when matter settled 4 The Tribunal's costs rule is in s 88(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act): 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 there are special circumstances warranting an award of costs. (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 the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 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. (Emphasis added) 5 KR was not legally represented so the only costs to which he is entitled are his reasonable out of pocket expenses. 6 There is no procedure set out in the ADT Act or Rules (Administrative Decisions Tribunal Rules (Transitional) Regulation 1998) that govern the circumstances where the substantive issue is settled but an application for costs remains. Under s 73(1) of the ADT Act, the Tribunal may, subject to that Act and the Rules, determine its own procedure. On that basis I am satisfied that this Tribunal can determine the question of costs even though the substantive issue in dispute has been resolved between the parties. This approach is consistent with the rules and practice of the High Court. Order 71, r 39 of the High Court Rules 1952 states that: When for any reason the further prosecution of a proceeding becomes unnecessary, except for the purpose of determining by whom the costs of the proceeding should be paid, any party may apply to the Court or a Justice to determine that question, and thereupon the Court or Justice may make such order as is just. 7 In Re the Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 143 ALR 1, a case which considered Order 71, r 39, McHugh J stated at 3, that: In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. Costs application 8 In his written submissions in relation to costs, KR focused entirely on the amount of costs to which he said he was entitled, rather than the legal basis for his costs application. Nevertheless it was clear from other written submissions and his oral submissions to the Tribunal that KR was aggrieved by the conduct of some of the employees of the agency in dealing with his FOI application. In particular, he submitted that Dr Blok's letter of 10 February 2004 constituted "wilful obstruction" and "wilfully making false and misleading statements." That letter noted that the Tribunal had directed KR to apply for an application for internal review of the agency's decision within a specified time, but that KR had not done so. It went on to note that "in the interests of resolving this matter" the agency had decided to undertake an internal review and that Ms Kerry Stubbs, the Executive Director of the agency, would do so. 9 During the course of the hearing, it was apparent that KR was under the impression that his FOI application had already been subject to an appeal process and that there was no need for a further internal review. He also questioned the suitability of Ms Stubbs to undertake the internal review. It is inherent in KR's application for costs that the agency wasted his time and money by defending his application when it ultimately decided to provide him with all the documents he initially requested. 10 In Re the Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 143 ALR 1, the visa applicant sought costs from the Minister because soon after she had commenced proceedings in the High Court, the Minister granted her a protection visa. The High Court was interpreting Order 71, r 39 of the High Court Rules 1952. That rule is set out above at [5]. The usual costs rule in the High Court is that the successful party is entitled to be paid its costs by the unsuccessful party. McHugh J noted at 3, that "When there has been no hearing on the merits ... a court is necessarily deprived of the factor that usually determines whether or how to make a costs order." McHugh J at 4, framed the question to be answered in such proceedings in the following terms: The critical question in this case then is whether or not the prosecutrix acted reasonably in bringing these proceedings and whether the respondent acted so unreasonably in not informing the prosecutrix that an application to review the decision to refuse the visa was being considered that it would be proper for the Minister to pay the whole or part of the cost of the proceedings. 11 The High Court dismissed the prosecutrix' application for costs because the Minister was under no duty to inform the applicant of his reconsideration of the decision. Alternatively, the High Court found that even if the failure to inform was a legally relevant factor on the costs issue, the conduct of the Minister and his advisers was reasonable. Unlike the usual costs rule in courts, a successful outcome does not warrant an award of costs in Tribunal proceedings. The "normal" rule in relation to costs of Tribunal proceedings is that parties meet their own costs. Because the Tribunal's normal costs rule is that no costs are ordered, the test of reasonableness applied by the High Court in Re the Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin is not directly applicable. I turn now to consider the extent to which the reasonableness or otherwise of a party's conduct and any other factors, are relevant when determining whether or not there are "special circumstances" justifying an order for costs. 12 In March 2003, the Tribunal issued Practice Note No 12 which sets out, by way of example, circumstances that may be "special" and therefore justify a cost order. One circumstance identified in the Practice Note is "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." The Tribunal has previously decided that the costs power should not be used to punish an agency for poor administration. In Raethel v Director General, Department of Education and Training [2000] NSWADT 56 the Tribunal said, at [57]: To use the costs power as some kind of sanction to punish agencies for poor administration would, I consider, involve the error condemned frequently by the courts of using the costs sanction for punitive rather than compensatory purposes: Latoudis v Casey (1990) 170 CLR 534 at 542-3 per Mason CJ; and at 567 per McHugh J. The oversight body for bad administration in government is the Ombudsman's office. This Tribunal only becomes involved in the issue of bad administration to the extent that statutory procedures pertinent to an application may not have been observed. 13 On the basis of the authorities set out above, KR's submissions and the circumstances of the case raise two possible bases on which the Tribunal could make a costs order against the agency. They are that: - the agency has failed to observe statutory procedures pertinent to an application and those failures have had an impact on the costs incurred by the applicant; or - the agency has relied on an exemption which has no tenable basis in fact or law. Observance of statutory procedures 14 Mr Smyth, representing the agency, submitted that the agency had complied with all directions made by the Tribunal including conducting an internal review of the decision, providing KR with a copy of that review by the due date and providing the Tribunal with a complete copy of the medical records as directed. According to Mr Smyth, the agency has not delayed, obstructed or prolonged the ADT proceedings. 15 We are satisfied that the agency has observed its statutory obligations and complied with the Tribunal's directions. There are no "special circumstances" relating to failure to observe statutory procedures. Exemption with no factual basis? 16 The agency's decision not to disclose the names of staff to KR was based on their claim that disclosure of that information could reasonably be expected "to endanger the life or physical safety of any person." The only evidence of KR's mental state was a letter from KR's consultant psychiatrist, Dr Nick Babidge dated 2 April 2004. The relevant parts of that letter are set out below: His diagnosis was schizophrenia. He had very poor insight into this illness and disagreed with the need for treatment or admission. . . . Once the temporary patient order was made he was generally compliant with treatment, although continued to complain about being "illegally imprisoned" at Caritas. This was a false belief, which he maintained despite several opportunities to discuss the reality of his situation . . . Therefore I think he maintained a persecutory delusion that he had been imprisoned by police and the mental health system unjustifiably, rather than treated legally and appropriately. Despite this, he was granted unescorted leave during the order, took this appropriately and returned to the ward himself, suggesting some cooperation with treatment. In my view he probably does not present an immediate physical threat to staff involved in his care, particularly if he is now living interstate. I do not think it should be kept from him that he was admitted under the act after police presentation, that I was his treating psychiatrist, that he saw a magistrate and so on, but his insistence on obtaining the names of every staff member involved in treating him is still concerning. If there is specific incident he is concerned about this could be investigated in the normal way, but I am concerned that his lack of insight and his concrete, irrational thinking about his entire admission may lead him to harass or persecute individual staff members. (Emphasis added) 17 This report does not support the agency's claim that disclosure of staff names could reasonably be expected "to endanger the life or physical safety of any person." To the contrary, the report states that "he probably does not present an immediate physical threat to staff involved in his care. . ." The highest opinion Dr Babidge offers is that KR's lack of insight and irrational thinking may lead him to harass or persecute individual members of staff. Dr Babidge distinguished between physical threats to staff and harassment or persecution. Even accepting Dr Babidge's opinion, the future possibility of such harassment or persecution does not amount to a risk that the life or physical safety of those staff could be endangered. 18 The agency submitted that it had a "reasonably arguable" position in relation to concerns over what action KR might take if he had access to personal details of staff members. There was no evidence of staff concerns, but even if staff had genuine concerns about KR's intentions, that is not a sufficient factual basis to come within the exemption relied on by the agency. There was no evidence that disclosure of staff names could reasonably be expected "to endanger the life or physical safety of any person." In my view, the agency's reliance on an exemption which had no tenable basis in fact amounts to a "special circumstance" warranting an order for costs. Although the substantive issue was settled during the course of the hearing, KR was put to unnecessary expense in preparing for and attending the Tribunal hearing. Amount of costs 19 KR is entitled to his out of pocket expenses reasonably incurred in preparing for and attending the hearing. Several of the expenses KR claimed simply do not fall into that category. Those expenses include medical expenses, loss of income, computer costs, pain and suffering, provision for future costs, books, travel in his father's car etc. While it is likely that KR would have incurred incidental telephone, stationery and postal costs, in the course of preparing for the hearing, he did not itemise these costs in such a way as to enable me to assess the amount he reasonably expended in preparing for the hearing. In those circumstances, I have estimated the reasonable costs of stationery, telephone calls, postal expenses, photocopying and other miscellaneous expenses in preparing for the hearing to be $250.00. Having reviewed KR's application for costs, the total costs to which he is entitled is $601.50. That amount is calculated as follows: Return Air flight Brisbane/Sydney - $210.00 Accommodation in Sydney - $41.50 Food/fares for 2 days in Sydney - $100.00 Miscellaneous expenses in preparing for the hearing $250.00 TOTAL $601.50 20 The agency is to pay KR's costs in the sum of $601.50 within 28 days of the date of this decision.