CITATION: NZ v New South Wales Department of Housing (No.3) [2008] NSWADT 73 DIVISION: General Division APPLICANT NZ PARTIES: RESPONDENT New South Wales Department of Housing FILE NUMBER: 063415 HEARING DATES: On the papers SUBMISSIONS CLOSED: 5 February 2008 DATE OF DECISION: 7 March 2008 BEFORE: Handley R - Judicial Member CATCHWORDS: Costs MATTER FOR DECISION: Costs LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Privacy & Personal Information Act 1998 NZ v NSW Department of Housing [2007] NSWADT 62 CASES CITED: NZ v NSW Department of Housing (No 2) [2008] NSWADT 5 Charteris v General Manager, Leichhardt Municipal Council (No 2) [2001] NSWADTAP 39 Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 APPLICANT No appearance REPRESENTATION: RESPONDENT No appearance ORDERS: The Department's application for costs is dismissed. REASONS FOR DECISION 1 The Respondent in this matter, the NSW Department of Housing ('the Department'), submits there are 'special circumstances' warranting the Tribunal's exercise of its power under section 88(1) of the Administrative Decisions Tribunal Act 1997 ('the ADT Act') to award costs in its favour against the Applicant, NZ. Background 2 On 7 January 2008, the Tribunal issued a decision to take no further action in this matter pursuant to section 55(2) of the Privacy & Personal Information Protection Act 1998 ('the PPIP Act'): NZ v NSW Department of Housing (No 2) [2008] NSWADT 5 ('NZ (No 2)'). During the hearing, the Department had submitted that the Tribunal should award costs in its favour. The Tribunal therefore invited further submissions on the issue of costs, stating that unless either of the parties applied for submissions on costs to be made orally, such submissions were to be made in writing and the Tribunal would make a decision 'on the papers'. In accordance with the timetable set out in the Tribunal's orders, the Department filed submissions on 21 January 2008. NZ has not filed any submissions in response. The Proceedings 3 The Department submits NZ: "persisted with an unarguable and misconceived set of complaints, directed at parties not concerned with or connected to the Respondent. None of the complaints proved to have any or even any reasonable basis." 4 The Department points to NZ's conduct of her case in the Tribunal. The Department submits that NZ failed to comply with the timetable set out at a planning meeting on 24 January 2007, in that she failed to file submissions by 16 February 2007, instead filing "a large amount of mainly non-relevant documents". 5 After a preliminary hearing on 15 March 2007, the Tribunal determined that it had jurisdiction to hear NZ's application for review: NZ v NSW Department of Housing [2007] NSWADT 62. The Tribunal remitted the matter to the Department to make a decision in response to NZ's complaint of a breach of her privacy. 6 Pursuant to this remittal, on 7 June 2007, the Department determined that as far as was discernable, the documents to which NZ referred provided no basis for a complaint of a breach of privacy. Moreover, in relation to statements with attached documents made by NZ's neighbour (the statements dated 2 February 2006 and 20 April 2006), and filed by the Department in other proceedings in the Tribunal, the Department said that non-compliance with the non-disclosure and collection provisions of the PPIP Act is permitted pursuant to section 25 and section 23(2), respectively, of the PPIP Act. 7 NZ elected to continue with her application before the Tribunal. At a planning meeting on 8 June 2007, when NZ informed me that she had applied for legal aid, I made further directions, including requiring NZ to notify the Tribunal by 27 June 2007 as to whether 'Legal Aid' had agreed to represent her, and, by 11 July 2007, to address matters raised in the Department's decision letter dated 7 June 2007. I also set the matter down for hearing on 17 August 2007. NZ failed to comply with the directions. On 14 August 2007, Peter Baker, solicitor for NZ, notified the Tribunal that legal aid had been granted for representation of NZ in these proceedings and requesting that the hearing date on 17 August 2007 be vacated. I agreed to the vacation and re-listed the matter for 12 September 2007. 8 At the hearing on 12 September 2007, counsel for NZ, Ms L Goodchild, without prior notice to the Department (or the Tribunal), sought a further adjournment on the basis of a submission that the evidence indicated a serious breach of privacy. Ms Goodchild indicated that she had had difficulty obtaining instructions from NZ by reason of her condition. I reluctantly agreed to the adjournment but made further directions, listing the matter for an adjourned hearing on 27 November 2007. Included in the directions were the following: "1. That the Applicant narrow and detail with clarity the exact nature of the complaints against the respondent and prepare a bundle of documents for the purpose of that narrowing to be filed and served by 29 October 2007. 2. That if there are any documents not currently before the Tribunal, that these documents be identified by the Applicant and leave be sought to introduce these documents in these proceedings – again by 29 October 2007. 3. That the Applicant will file and serve her written submissions by 29 October 2007." No documents or submissions were received from either NZ or her representatives in response to these directions. 9 At the hearing on 27 November 2007, Ms Goodchild provided written submissions and made oral submissions in relation to one alleged breach of privacy, stating that NZ would make oral submissions on other matters. Counsel for the Department, Mr AR Jungwirth, submitted that the Department was significantly prejudiced by Applicant's failure to lodge submissions in accordance with my directions. Ms Goodchild pointed to the difficulty she had encountered in obtaining instructions from NZ. 10 In submissions to the Tribunal on the issue of costs, the Department identified two parts to the case argued by the Applicant at the hearing. First, Ms Goodchild sought to rely on a letter dated 26 January 2003 by an unknown author, stating allegations of fraud against four named persons, not including the Applicant. The Department submits that no argument was presented to overcome the fundamental flaw that the complaint was significantly out of time. Secondly, NZ alleged a number of privacy breaches by the Department. In response, Mr Jungwirth again submitted that the application should be dismissed under section 73(5) of the ADT Act on the basis that is frivolous, vexatious or otherwise misconceived or lacking in substance. 11 The Department submits that there is good reason to depart from the standard position in proceedings before the Tribunal that the parties should bear their own costs. It submits: "26. Leaving aside significant problems the Applicant faced in relation to expired limitation periods concerning her complaints, these proceedings were, with respect, doomed to failure. 27. Much of the substance of the complaints relates to disputes between the Applicant and non-parties: members of her family and neighbours. The Respondent has had no involvement in those disputes. 28. The Applicant's case focussed on exhibits and evidence given in Local Court proceedings for apprehended violence orders ('AVO') in 2002 and 2003. The Respondent was not a party to those proceedings." 12 The Department points to the Applicant's repeated non-compliance with tailored directions requiring her: "to distil the nature of her complaints from the vast quantity of mostly non-relevant documents directly contributing to the Respondent expending substantial time and incurring significant costs in responding." 13 The Department submits that my finding in the principal matter that the letter dated 26 January 2003 was not capable of being defined as "personal information", as required by section 4(1) of the PPIP Act, "is a good measure of the futility of the complaint". Moreover, the balance of the complaints argued by NZ were "fanciful, misconceived and lacked any merit". The Department submits that, in effect, NZ: "has sought to convert complaints about other persons' evidence in other proceedings into complaints against the Respondent under the Act, a wholly inappropriate use of the processes of the Tribunal." The Department points to my finding that NZ "appears to misunderstand the scope of the protection afforded by the PPIP Act, believing it to be much broader than is the case" (NZ (No 2), at paragraph 32). 14 The Department concludes: "37. The Applicant persisted with prosecuting an unarguable case, could not be persuaded from alleging the respondent had some unspecified and un-evidenced involvement in AVO proceedings and ultimately, after much delay, adduced no evidence that even qualified any of her complaints for the purposes of the definition of 'personal information' or for that of any privacy breaches under the Act." 15 Thus, the Department submits there are strong grounds for my finding that there are special circumstances warranting an award of costs in its favour. Discussion 16 Section 88 of the ADT Act states: 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. (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. 17 Thus, the Tribunal has a discretion to award costs where there are 'special circumstances'. The Tribunal's normal expectation is that the parties in Tribunal proceedings should bear their own costs. The Tribunal does not follow the usual approach in judicial proceedings whereby the successful party can expect an order for costs. 18 The Tribunal's Practice Note Number 12 provides, relevantly, the following examples of special circumstances that may justify a costs order pursuant to section 88(1): " Special circumstances that may justify a costs order 2. The following are some examples of special circumstances that may justify a costs order. The Victorian and Civil Administrative Tribunal Act 1998 costs provisions have been cited in a number of this Tribunal's decisions and the relevant sections form part of the following list of examples. The examples are not exhaustive: whether a party has conducted the proceeding in a way that disadvantaged another party to the proceeding by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse; (ii) failing to comply with this Act, the regulations, the rules or an enabling enactment; (iii) asking for an adjournment as a result of (i) or (ii); (iv) causing an adjournment; (v) attempting to deceive another party or the Tribunal; (vi) vexatiously conducting the proceeding; whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding; 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; in matters under the Retail Leases Act 1994 ... ; where an appeal is lodged ... ." 19 In Charteris v General Manager, Leichhardt Municipal Council (No 2) [2001] NSWADTAP 39, at paragraph 14 and paragraph 36, the Appeal Panel agreed with the Tribunal at first instance that 'special circumstances' alone are not sufficient – under section 88(1) they must "warrant an award of costs". Relevantly, it is clear from the Panel's discussion that the conduct of one party that causes the other party to incur costs because of unreasonable delays and failure to comply with directions, or by making misconceived, frivolous, vexatious or insubstantial applications, may constitute special circumstances warranting an award of costs. In such cases, it is the unreasonableness of the conduct of the party, which is generally the focus of scrutiny in determining whether there are 'special circumstances' justifying the exercise of the Tribunal's discretion. (See Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622, at 624-625, per McHugh J, for the position in the courts.) 20 I noted in my decision in the principal matter, NZ (No 2), at paragraph 20 to paragraph 21: "20. NZ suffers from a psychological condition (severe agoraphobia and social phobia) that prevents her from leaving her home. She has provided a number of reports from her general practitioner and treating psychologist attesting to this. Even when discussing her application with the Tribunal on the phone, NZ quickly becomes distressed. NZ also seems to experience difficulty in organising and collating the documents that she states are relevant to her claims. She appears to overcompensate for her isolation by submitting sometimes hundreds of pages of documents, not all of which are complete, many of which appear not to be directly relevant, and on which she often makes handwritten notations and adds highlighting. 21. This tends to confuse the reader and makes it difficult to understand the nature of NZ's claims, some of which seem to be very general in nature, without specific reference to the PPIP Act, and which appear to represent her belief that various members of her family, her neighbour, and the officers of various agencies are involved in "fraudulent" activity and in making false allegations with the aim of bringing her into disrepute and damaging her reputation ..." 21 I have no doubt that the Department has incurred significant costs in trying to understand the nature of NZ's complaints and attempting to address NZ's complaints pursuant to the provisions of the PPIP Act. However, this must be viewed in the context of the condition from which NZ suffers, which materially affects her capacity both to articulate the substance of her complaint and to respond appropriately in proceedings before the Tribunal. In my view, the reasonableness of NZ's conduct cannot be measured against the usual objective standard, but must be considered in the context of her mental state. To do otherwise would potentially be to penalise her for a state of mind, which is essentially beyond her control. 22 I accept that the Department has, at times, found dealing with NZ to be difficult and frustrating. Yet, as I stated in NZ (No 2), at paragraph 31: "I am not satisfied that the proceedings are frivolous or vexatious in the sense of their being instituted with the intention of annoying, harassing or embarrassing the Respondent, or for some other collateral purpose. NZ is obviously convinced of 'the rightness' of her cause in seeking to remedy what she believes to be "fraudulent" activity and false allegations made with the aim of bringing her into disrepute and damaging her reputation." 23 However, I also recognised, at paragraph 32: "with the exception of the issue of the letter of 26 January 2003 upon which Ms Goodchild made submissions to the Tribunal, in my view, the proceedings are otherwise misconceived or lacking in substance in the sense that NZ appears to misunderstand the scope of the protection afforded by the PPIP Act, believing it to be much broader in its application than is the case. Nevertheless, having otherwise dismissed NZ's application, it is unnecessary for me to make an order under section 73(5)(h)." 24 In relation to the Department's complaint that NZ failed to comply with directions, I note that the proceedings were delayed for some months by NZ's seeking representation from the NSW Legal Aid Commission. NZ is, of course, entitled to seek legal representation, and such representation is likely to be particularly beneficial for a person who has difficulty in articulating the nature of their complaint and in pursuing legal remedies. However, in NZ's case, the fact that she suffers from severe agoraphobia and social phobia, which prevent her from leaving her home, make it very difficult for any legal representative to obtain proper instructions, as NZ's counsel, Ms Goodchild, acknowledged at the hearing of the principal matter. 25 Thus, I am not satisfied that NZ intended to delay or obfuscate these proceedings by her conduct. In terms of non-compliance with the Tribunal's directions, one of the examples of special circumstances that may warrant a costs order referred to in the Tribunal's Practice Note, I am satisfied that on the occasions of non-compliance, either NZ or her legal representatives had a reasonable excuse for not complying with the Tribunal's directions. Moreover, as I have stated, in my view, NZ had a genuine belief in the rightness of her application, albeit that she may have misunderstood the protections afforded to her by and the jurisdictional limitations of the law. 26 While I recognise the difficulty faced by an agency in responding appropriately to such an applicant and the strain this may place upon its limited resources, having reviewed the proceedings in this matter, I am not satisfied that NZ's conduct, when viewed in the context of her mental state and the constraints imposed on her by that mental state, constitutes "special circumstances" warranting a costs order against her. Order The Department's application for costs is dismissed. 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.