Appeal Panel - Internal CITATION: PC v University of New South Wales (GD) (No 2) [2006] NSWADTAP 54 APPELLANT PARTIES: PC RESPONDENT University of New South Wales FILE NUMBER: 059052 and 059078 HEARING DATES: 5/05/2006 SUBMISSIONS CLOSED: 05/17/2006 DATE OF DECISION: 10/12/2006 BEFORE: Karpin A - ADCJ (Deputy President); Higgins S - Judicial Member; O'Neill A - Non Judicial Member CATCHWORDS: costs - costs - relevant considerations - statutory interpretation MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 059052 and 059078 DATE OF DECISION UNDER APPEAL: 11/22/2005 Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Freedom of Information Act 1989 Privacy and Personal Information Protection Act 1998 APPELLANT In person REPRESENTATION: RESPONDENT N Sharp of Counsel instructed by M Toomey ORDERS: 1. Appeal (File No. 059078) is dismissed; 2. Appellant to pay respondent's costs of Appeal (File No. 059078) and Appeal (File No. 059052) in the sum of $4,000.00 REASONS FOR DECISION 1 By Notice of Appeal filed 5 August 2005, the appellant appealed the decision of the Administrative Decisions Tribunal given in oral reasons delivered by the President of the Tribunal, on 18 May 2005, and confirmed in written reasons delivered 8 July 2005: see PC v. University of New South Wales [2005] NSWADT 157. 2 Following a hearing on 30 November 2005, the President's decision, dismissing the appellant's application for a review pursuant to s. 55 of the Privacy and Personal Information Protection Act 1998 was confirmed by the Appeal Panel on 20 December 2005: PC v University of New South Wales [2005] NSWADTAP 72. In that decision the Appeal Panel made an order granting the Appellant a further 28 days within which to make written submissions in response to the respondent's application for costs in relation to the appeal from the substantive decision of the President. This decision deals with that application, which relates to File No 059052 ("costs of the first appeal"). 3 On 22 November 2005, the President, ordered the applicant to pay the respondent's costs relating to her application for review. The amount the appellant was ordered to pay was $2,500: see PC v. University of New South Wales (No.2) [2005] NSWADT 264. The appellant has also appealed that order, which is the subject of this appeal - File No. 059078 ("appeal of cost decision of 22 November 2005"). For the reasons set out below, we have determined that the appellant's application in respect to her appeal of the cost order should be dismissed. However, this decision also deals with an application by the respondent for its costs in relation to this appeal ("costs of this appeal"). Appeal of costs decision of the President of 22 November 2005 4 It is convenient to first deal with the appellant's appeal of the cost decision of the President of 22 November 2005 as the appellant has raised an argument about the Tribunal's power to award costs. In this regard, the appellant submitted that the Tribunal did not have power to make an order for costs. She mounted that argument in various ways, but essentially submitted that the proceedings were in the Tribunal's original jurisdiction (s. 37 of the Administrative Decisions Tribunal Act 1997) rather than the review jurisdiction (s. 38 of the Administrative Decisions Tribunal Act 1997). The significance of this lies in s.88 of that Act, which is the section that gives the Tribunal power to make cost orders. That section, so far as is relevant provides as follows: '88 Costs (1) 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 … (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.' 5 As pointed out by the President at [7] the above provisions provide that in its non-original (i.e. review) jurisdiction the Tribunal has power to award costs based on the principle in s 88(1), however, where the application is one that comes within the 'original decisions' jurisdiction of the Tribunal, then the power to award costs must be found in the primary Act that confers jurisdiction on the Tribunal. 6 There is no dispute that the Privacy and Personal Information Protection Act 1998 makes no provision for the Tribunal to award costs. Accordingly, the question for determination is whether the President erred in his construction of s.55(1)(b) of the Privacy and Personal Information Protection Act 1998 that an application for review of conduct that was the subject of an application by the applicant under s.53 of that Act came within the Tribunal's review jurisdiction or whether it came within the Tribunal's original decision. As pointed out by the President at [8] in the case of the Privacy and Personal Information Protection Act 1998 the position is not entirely clear. The President at [10] to [26] went on to consider the relevant provisions of the Privacy and Personal Information Protection Act 1998, in particular ss 52-56. In this regard the President at [15] pointed out that ss 52 (definition of conduct that is reviewable under Part 5 of the Act) and 53 (right of an aggrieved person to make an application for internal review of conduct the subject of Part 5 of the Act) "parallel in important respects the approach of the FOI Act" ("Freedom of Information Act 1989"); namely the right to an internal review and the express exclusion of the internal review provisions in s.53 of the Administrative Decisions Tribunal Act 1997. 7 After considering previous decisions of the Tribunal in respect to the nature of an application under s. 55 of the Privacy and Personal Information Protection Act 1998, the President went on to say the following: 30 In my view, for the reasons given in my comments on s 53(8) and s 55(1), there is a basis for concluding that at least part of what the Tribunal is doing in a Privacy Act matter is reviewing the decision of the agency to the extent that its findings come under review, or the action taken or proposed to be taken come under review. It is significant in this respect that s 55(3) of the Privacy Act preserves the Tribunal's powers under Division 3 of Part 3 of Chapter 5 of the Tribunal Act. These powers include the power to affirm, vary or set aside the 'reviewable decision': s 63. At the least, s 55(3) is another manifestation of an intention on the part of the Parliament to assimilate the Tribunal's privacy functions to the review jurisdiction. 31 Instead of simply describing the report prepared by the agency in response to the application for internal review as a 'determination', the Parliament chose in the Privacy Act instead to refer to the two key elements of the report – 'the findings' and 'the action proposed'. These are also the two key elements of any determination. The term 'findings' is commonly used to refer to findings of fact; it is also often used to refer to the ultimate findings resulting from the application of the law to the facts as found – the question of contravention (or liability). The term 'action proposed' deals with the question, in the event of an adverse finding on liability, of 'remedy'. 32 As noted, s 55(1) expresses the right to apply for review in different terms to s 53(8). Another difference is that s 53(8) speaks of a right to review 'proposed action', while s 55(1) gives a right to review 'action taken'. This difference is understandable as s 53(8) is dealing with the contents of a notice to be given to the applicant within 14 days of the finalisation of the report. 33 It may be that the explanation for there being no time limit on Privacy Act review applications (see Fitzpatrick) lies in the words 'action taken'. It may be some time before an agency 'takes action' following a report. It would be unfair to applicants if they were precluded from bringing a case to the Tribunal simply because they had had to wait for a long time to see whether the action taken by the agency was satisfactory. 34 The Tribunal's role in reviewing the 'conduct' of the agency must be seen in a global context. The Tribunal will have before it, unless the agency failed to act (a circumstance for which there is special provision), the agency's report on the conduct put in issue by the application for internal review. The process adopted by the Tribunal is one of re-examination of the circumstances. This is no different to the process followed in conventional external review of determinations. 35 The remedy provisions are not the conventional ones of administrative review. They resemble the order-making powers given to the Tribunal in one of its original jurisdictions, the Anti-Discrimination or Equal Opportunity jurisdiction. On the other hand the Privacy Act does, as already noted, give the Tribunal power to make orders of the kind conventionally made in administrative review proceedings. 36 Ultimately the question posed by s 88(3) of the Tribunal Act is whether the relevant function (here the privacy function) belongs to the 'original' jurisdiction. 37 Section 37 is the key provision describing the nature of the Tribunal's original jurisdiction: 'The Tribunal has jurisdiction under an enactment to act as the primary decision-maker if the enactment provides that applications may be made to it for decisions made in the exercise of functions conferred or imposed on the Tribunal by or under that enactment.' 38 In my view when it is carrying out its function of reviewing the conduct of the agency the Tribunal is not acting in the way contemplated by s 37 of the Tribunal Act. It is, in my view, not acting as the 'primary decision-maker'. There is already, in the form of the report containing findings and proposed action, a decision made by the agency on the matter. 39 The agency is the primary decision-maker. The Tribunal is clearly a secondary decision-maker. It can issue a different set of 'findings' and can propose different 'action'." 8 It was the appellant's contention that where an agency fails to make an internal review determination under s. 53 of the Privacy and Personal Information Protection Act 1998 the Tribunal's jurisdiction under s. 55 of that Act is governed by s. 37 of the Administrative Decisions Tribunal Act 1997 and not s.38. That is, to use the words of the appellant at [12] of her written submissions filed on 27 March 2006, '… [the] Tribunal's jurisdiction is for the "original" conduct.' Which, following oral submissions, the Appeal Panel understood the appellant to mean that where no internal review has been conducted by the relevant agency, on an application under s. 55 of the Privacy and Personal Information Protection Act 1998, the Tribunal became the 'original' decision maker and not the secondary decision maker. 9 In our view there is no merit in the appellant's argument, which appears to have been formulated in a way so as to give her a further opportunity to argue the merits of her substantive application. In this regard we agree with the detailed analysis of the President in that on an application under s. 55 of the Privacy and Personal Information Protection Act 1998 the Tribunal is the secondary decision maker. By reason of the expanded definition of the words 'decision' in s.6 of the Administrative Decisions Tribunal Act 1997, the Tribunal remains the secondary decision maker even where there has been a failure to make an internal review decision: see s.6(5) which provides as follows: '6(5) Failure to make a timely decision taken to be failure to make a decision. For the purposes of this Act, a failure by a decision-maker to make a decision within the period specified by the enactment concerned for making the decision is taken to be a decision by the decision-maker at the end of the period to refuse to make the decision.' 10 The appellant's contention also ignores the decision of the President, as affirmed by the Appeal Panel, that the Tribunal had no jurisdiction to hear and determine her application for review as she had failed to exercise her rights under s. 53 of the Privacy and Personal Information Protection Act 1998 to make an internal review application. That is, it was as a result of her failure and not that of the respondent that no internal review was conducted. As noted in our earlier decision, the appellant had been invited to make such an application, but failed to do so. 11 Nothing put by the appellant has persuaded the Appeal Panel that the President has fallen into error. The Appeal Panel is satisfied that the relevant proceedings fall within the Tribunal's review jurisdiction. Accordingly, for the reasons set out above, the appellant's contention that there was no jurisdiction for the Tribunal to make an order for costs under s.88(1) of the Administrative Decisions Tribunal Act 1997 must fail. 12 The appellant sought to extend the appeal on costs to the merits, the President having exercised his discretion on the issue of costs. The appellant did not contest the underlying principles that had been relied on by the President, which are now well established. Her contention was simply that in her case the circumstances did not amount to 'special circumstances' and even if they did these were not such that they 'warranted' an award of costs. 13 None of the arguments advanced by the appellant was persuasive in this regard. The Appeal Panel is satisfied that the President made a discretionary decision which was plainly open to him, and which could not be characterized as either unjust or unreasonable in all the circumstances. Having regard to the history of the matter, we are satisfied that the costs ordered are moderate in quantum and well justified. 14 We note that in determining quantum, the President halved the costs sought, reasoning, inter alia, that a party at fault in this jurisdiction should not be exposed to the costs of the attendance of more than one lawyer. His Honour said: "Tribunals should discourage double lawyering of cases. Agencies, I accept, will often choose to have their solicitor engage counsel with specialist expertise. This choice is not one that I think self-represented applicants should be expected to bear, even though the overall conduct of their proceedings may have been sufficient to lead to a 'special circumstances' finding." 15 For the reasons set out above, the appropriate orders in respect to this appeal (i.e File No. 059078) is that the appeal be dismissed. Costs of the appeals 16 It is convenient to deal with the two applications for costs (i.e. those relating to appeal File No 059052 and this appeal File No 059078) together as they arise from the one application and also raise similar issues. 17 The history of the original unsuccessful application of the applicant is set out in full in the decision of the Appeal Panel given on 20 December 2005. As mentioned above, the Appeal Panel is satisfied that throughout the history of the proceedings in the Tribunal, the appellant has been afforded every opportunity to remedy the fundamental error in her application, namely, that she had failed to seek an internal review. Her ongoing failure meant that the Tribunal had no jurisdiction to entertain her application, and the Appeal Panel was in no better position, there having been no application to the respondent for an internal review, a pre-condition to enliven the jurisdiction of the Tribunal. 18 The respondent's application for costs in respect to the first appeal was based on what the respondent contended to be the unmeritorious nature of the arguments advanced by the appellant on appeal, in particular, her insistence in seeking to canvas matters that were not relevant, and her failure to argue matters that had been proposed as legal argument in her written submissions. 19 On hearing argument from the respondent, the Appeal Panel observed that on the basis of the respondent's submissions the circumstances in this case did give rise to 'special circumstances' for the purposes of section 88(1) Administrative Decisions Tribunal Act 1997, and was one in which, in accordance with the decision in GA v. Department of Education and Training and New South Wales Police (GD) [2005] NSWADTAP 64, the appellant should be ordered to pay the costs of the respondent. Having made that observation the appellant, as already noted, was permitted 28 days from the date of publication of the decision, within which to make submissions to the Tribunal on the issue of costs. It was agreed those could be submitted by email. 20 In respect to this appeal, the respondent relied on a letter, dated 23 December 2005, it sent to the appellant. In that letter the appellant was put on notice by the respondent, that she had failed to identify a question of law to be argued on appeal, and in the event that the appellant was unsuccessful in her appeal, the respondent would seek an order for costs of the proceedings before the Appeal Panel. That order was sought at the conclusion of the hearing of the second appeal on 5 May 2006. At the conclusion of that hearing the Appeal Panel directed the respondent to file any further material upon which it sought to rely in seeking its costs of proceedings before the Appeal Panel. That material was filed on 9 May 2006. The respondent sought costs in the sum of $4,443.75 in respect to both appeals. The respondent also provided the Appeal Panel with a detailed chronology and a break up of how these costs had been calculated. 21 The appellant was also given the opportunity to file and serve additional material which she did on 17 May 2006. 22 As already mentioned, there is no dispute as to the principles that apply in determining whether a cost order should be made. These are that the Appeal Panel must be satisfied that there are 'special circumstances that warrant an order of costs': see s.88(1) of the Administrative Decisions Tribunal Act 1997. Furthermore, the power granted under s.88(1) is a discretionary one and in exercising that discretion relevant considerations include those matters set out in Practice Note 12 (reissued on 11 May 2005), which includes the following relevant examples of "special circumstances" which may warrant an order for costs under s.88(1) of the ADT: 'Whether a party has conducted the proceedings in the way that disadvantaged another party to the proceedings by conduct such as: (i) …; (ii) failing to comply with this Act, the regulations, the rules or enabling enactment; … (viii) 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.' 23 In our view, in this case the appellant in the face of detailed and cogent reasons delivered by the President both in relation to the substantive appeal and on the issue of costs, persisted in her applications before the Appeal Panel. She resisted the reasonable offers by the respondent to withdraw these quite hopeless and unmeritorious appeal. Nothing deterred her from pursuing her appeal, nor from mounting it in a manner which required the respondent to engage in considerable work in preparation for hearing. 24 The appellant has been told from the outset that her original application was fatally flawed because she had not sought an internal review. That problem was brought to her attention on several occasions, and, initially, at a time when she could have withdrawn her application and sought an internal review. She has maintained the proceedings before the Appeal Panel despite the careful reasons delivered by the President on 8 July 2005 and 22 November 2005. 25 The Appeal Panel is mindful of the difficulties faced by an unrepresented litigant in any jurisdiction. The appellant, however, is clearly intelligent and able, having been a senior member of staff with the respondent university. Her capacity to deal with issues arising is well demonstrated by both her written materials and oral submissions to the Appeal Panel. 26 The Appeal Panel, has carefully reviewed the history of the matter before the Panel, and prior thereto, and has, with some reluctance, come to the view that the appellant has persisted in her application, ignoring the unavoidable fact that she failed to take the proper steps to give the Tribunal jurisdiction to deal with her complaints. The Appeal Panel is of the view that the present application is misconceived, lacking in substance to the knowledge of the appellant. The appellant has both the intelligence and the education to comprehend the fatal flaw in her proceedings. She has persisted in the face of that knowledge. Those findings represent 'special circumstances' and also circumstances that 'warrant an order for costs' giving the Appeal Panel discretionary jurisdiction to award costs against the appellant in respect of the proceedings before the Appeal Panel. 27 As noted, the issue of quantum has been addressed in written submissions submitted by both parties. The Appeal Panel is satisfied on the costs material filed by the respondent, that care has been taken to avoid "double lawyering". The costs sought represent the necessary work occasioned to the respondent in the preparation for hearing, and represent the work of one person although each of counsel and the solicitor played a part in that preparation. 28 The Appeal Panel is of the view that it should exercise the costs discretion in favour of the respondent. Further, that the costs awarded should more nearly represent the actual costs incurred by the respondent. The appellant has persisted in her claims despite all endeavours made by both the respondent and the Tribunal at various points, to have her remedy the basic flaw in her case. There comes a time when such persistence in the face of information, knowledge and reason, must be reflected by a costs order that permits the respondent to recover at least a reasonable portion of the expense to which it has been forced over the history of the matter. 29 The Appeal Panel has arrived at this conclusion with some reluctance, bearing in mind the nature of the jurisdiction exercised by the Tribunal. An order for costs has the ability to deter an applicant from making further applications, and is otherwise out of step with the general philosophy applicable to matters brought under the Privacy and Personal Information Protection Act 1998. As the President said: "The applicant for a costs order must demonstrate that there are 'special circumstances' that take the case outside the ordinary boundaries that apply to the conduct of cases in the Tribunal." 30 The respondent has been put to the cost of meeting a case in the Tribunal both at first instance and before the Appeal Panel in circumstances where the Appellant had been advised on numerous occasions about the essential flaw in her application. That conduct gives rise to special circumstances. 31 The Appeal Panel is satisfied that the respondent should substantially recover the actual costs of the proceedings before the Appeal Panel. 32 The appellant will pay the costs of the respondent of and incidental to the proceedings before the Appeal Panel, assessed in the sum of $4,000.00 Orders: 1. Appeal (File No. 059078) is dismissed. 2. Appellant to pay respondent's costs of Appeal (File No. 059078) and Appeal (File No. 059052) in the sum of $4,000.00 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.