New South Wales Court of Appeal CITATION: Director General, Department of Education and Training v MT (No 2) [2006] NSWCA 320 HEARING DATE(S): On the papers JUDGMENT DATE: 21 November 2006 JUDGMENT OF: Spigelman CJ at 1; Ipp JA at 20; Hunt AJA at 21 DECISION: 1 The order as to costs should not be varied; 2 Add a new order ; "5 The Respondent to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled". CATCHWORDS: COSTS – Costs of appeal – Application by unsuccessful respondent that each party pay its own costs – Costs to follow the event Administrative Decisions Tribunal Act 1997: ss 88(1), 119 LEGISLATION CITED: Privacy and Personal Information Protection Act 1998: ss 12(c), 17, 18, 19 Suitors' Fund Act 1951 Uniform Civil Procedure Rules 2005: rr 36.17, 42.1 CASES CITED: CSR Limited v Eddy [2005] HCA 64; 80 ALJR 59 Director General, Department of Education & Training MT [2006] NSWCA 270 PARTIES: Director General, Department of Education and Training (Appellant) MT (Respondent) FILE NUMBER(S): CA 40043 of 2006 COUNSEL: N Perram SC (Appellant) S Pritchard (Respondent) SOLICITORS: IV Knight – Crown Solicitor (Appellant) Public Interest Advocacy Centre (Respondent) LOWER COURT JURISDICTION: Administrative Decisions Tribunal Appeal Panel LOWER COURT FILE NUMBER(S): ADT 049040 and 049045 LOWER COURT JUDICIAL OFFICER: Judge KP O'Connor, S Higgins, Z Antonios LOWER COURT MEDIUM NEUTRAL CITATION: [2005] NSWADTAP 77 - 1 - THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40043/06 SPIGELMAN CJ IPP JA HUNT AJA Tuesday 21 November 2006 DIRECTOR GENERAL DEPARTMENT OF EDUCATION & TRAINING v MT Judgment 1 SPIGELMAN CJ: The Court disposed of the substance of the appeal in an earlier judgment: Director General, Department of Education & Training MT [2006] NSWCA 270. The Court's orders included an order for the appeal to be allowed with costs. 2 After judgment was delivered the Respondent sought leave to file written submissions with respect to the costs order which application was not opposed. The Appellant asked the Court to delete from Order 2 the words "with costs". Alternatively, the Appellant seeks a certificate under the Suitors' Fund Act 1951. 3 The Appellant accepts that an order pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 can be made in the circumstances. The Respondent opposes the variation to Order 2. It makes no submissions with respect to the grant of a certificate under the Suitors' Fund Act. 4 The normal practice is that costs follow the event but the Court has a discretion to make a different order. This longstanding practice is reflected in the Uniform Civil Procedure Rules 2005 in r 42.1. 5 As was made clear in the substantive judgment (see at [2] and [5]) the Department had always acknowledged before the Tribunal that its conduct did constitute a contravention of s12 (c) of the Privacy and Personal Information Protection Act 1998 ("the Act"). It has yet to be determined by the Tribunal, at first instance, what consequences flow from the admitted breach by the Appellant of its obligation to take reasonable steps to safeguard protected information from authorised disclosure. The case before the Tribunal, the Appeal Panel and this Court concerned only the allegation that the Department had committed contraventions of other sections. Relevantly, the Appeal Panel concluded the Department had also contravened ss16, 18 and 19. As will appear below, I regard this as a relevant factor to take into account with respect to the submission that the usual order for costs not be made. 6 Ms S Pritchard, who appeared for the Respondent, drew the Court's attention to CSR Limited v Eddy [2005] HCA 64; 80 ALJR 59 esp at [81] where the High Court make an order that a successful appellant should pay the respondent's costs noting: "It is common in this Court in cases where the resolution of a point is desirable from the point of view of a large and recurrent litigant … but the other party to a litigation is not a recurrent litigant and is not well positioned to meet adverse costs orders on the point being tested, for the grant of special leave to be made conditional on appellants paying the other side's costs in any event …" 7 The practice of the High Court with respect to special leave applications is not a practice which affords any substantial guide to the exercise of the discretion by this Court under r 42.1. 8 The Respondent identified the following matters as pertinent to the exercise of the discretion and justifying departure from the usual rule: "(a) the Respondent commenced proceedings in a 'no costs jurisdiction', and succeeded at first instance and, in part, on appeal in that jurisdiction; (b) the Respondent could have, but declined to seek leave to appeal the decision of the Appeal Panel to the Court of Appeal; (c) the point upon which the Appellant succeeded in the Court of Appeal had not been taken below, was contrary to the then accepted jurisprudence of the Administrative Decisions Tribunal, and apparently contrary to the assumptions upon which the Department's own internal review had proceeded; (d) the Respondent acted responsibly in the conduct of the matter before the Administrative Decisions Tribunal and before the Court of Appeal; (e) the Respondent, being a 21 year old woman with a disability, is an ordinary litigant and 'not well-positioned to meet adverse costs orders'. (f) the Respondent has 'no interest in the legal position beyond this particular litigation'; and (g) the Appellant is a large and recurrent government litigant, with a substantial interest in the point being tested." 9 As to (a), the characterisation of the Tribunal as a "no cost jurisdiction" is not, in my opinion, of weight. Pursuant to s88(1) of the Administrative Decisions Tribunal Act ("the ADT Act"), the Tribunal is empowered to make an award of costs, but only if there are "special circumstances". There is no suggestion that this case gave rise to any such special circumstance. However, the appeals to the Court of Appeal are of a different character. No finding of special circumstances is required. 10 It may be that part of the purpose of s88 is to remove the deterrent effect of an exposure to costs awards for citizens who challenge the conduct of government agencies. This is not an object that has the same force on appeal. By s119 of the ADT Act, appeals to this Court are limited to questions of law. In the normal course, such an appeal involves much less in the way of legal costs than a hearing on the facts. The Parliament did not enact any requirement of special circumstances with respect to appeals. I see no reason why this Court should apply any analogous policy by adopting this consideration as a matter of significance in a discretionary decision. 11 As to the matters raised in par (b), I do not find this to be a material consideration to vary the normal order. No doubt a cross-appeal, presumably with respect to s17 of the Act, was not pursued for good reason. 12 As to (d), the normal order as to costs to the effect that costs follow the event assumes responsible conduct on the part of litigants. Costs orders are not made by way of punishment. The conduct of a case may, in particular circumstances, justify a special order of some character, even on occasions an order for indemnity costs. 13 The matters raised in par (c) set out above are threefold. 14 As to the first, I can see no relevant matter arising from the fact that, in its Internal Review, the Appellant proceeded on the basis that the teacher did disclose personal information about MT to the President of the soccer club. Before the Tribunal, the Panel and in this Court, the Appellant maintained the position that, other than with respect to s12(c) of the Act, the disclosure did not constitute a contravention of the Act. 15 The second matter is that the jurisprudence of the Administrative Decisions Tribunal prior to these proceedings encompassed an extended form of vicarious liability. This is, of course, indicated by the Tribunal and Appeal Panel decisions in the present case. It is to correct error that Parliament created a right of appeal to this Court on a question of law. That purpose extends to correcting practices that had developed in the Tribunal's jurisprudence. I do not see that the exercise of the discretion on costs should be affected by the fact that the Tribunal may have made the same error on other occasions. 16 The third matter raised under this paragraph is of a different character. It may be of some significance in the exercise of the costs discretion that the point was taken for the first time on appeal. The Appellant, however, contends that it did take the point and that its submissions below were of a sufficiently analogous character to encompass the arguments put in this Court. The Appellant drew the Court's attention to passages in the judgment of the Appeal Panel as Red Appeal Book 103 Q-V and 109 S-V. It is not necessary to set them out. In my opinion, these passages do indicate that similar submissions were put at the Appeal Panel level. 17 It is convenient to deal together with the matters raised in pars (e)-(g), each of which is derived from the above passage in the joint judgment in CSR Limited v Eddy. The matters are interrelated and involve a comparison between the Appellant, as a well resourced government Department, and the Respondent as an individual with rights under legislation designed to control conduct of government agencies. In this regard the Appellant submitted that the Department of Education and Training was not like CSR Limited, i.e. a large and recurrent litigant, because it is not the case that this Department has been regularly confronted by claims that privacy principles have been breached by its teachers. Nevertheless, the Department is an agency of the State Government, which does have an interest in determining the application of the Act, of a broader character that this submission suggests. 18 Nevertheless, there is no principle that the costs discretion will be exercised in such a way as to ensure that orders are not made against persons who are not in as good a position to bear the legal costs as the party in whose favour they are made. This case cannot be characterised as some sort of test case in which the Government of New South Wales, on behalf of its agencies, had a particular interest to resolve the law. 19 In my opinion, no basis for not making the usual order as to costs has been made out. However, it is appropriate to add: 5 The Respondent to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled. 20 IPP JA: I agree with Spigelman CJ. 21 HUNT AJA: in my opinion, it was reasonable for the Department to seek leave to appeal against the decision of the Appeal Panel of the Administrative Decisions Tribunal in relation to its findings that the Department was responsible pursuant to ss 18 and 19 of the Privacy and Personal Information Act 1998 for the use and disclosure of the respondent's personal information by one of its teachers in circumstances extraneous to his employment as such, and this notwithstanding that the Department had at all stages conceded that it was itself in breach of its own obligation pursuant to s 12(c) of that Act to protect that information against unauthorised use or disclosure. 22 The findings against the Department pursuant to ss 18 and 19 were directly relevant to the amount of damages which it would have been open to the Tribunal to order the Department to pay to the respondent, and to make other orders of a substantial nature which may be made pursuant to s 55 of that Act. 23 Accordingly, I agree with the Chief Justice that the costs order made by this Court in the appeal should not be varied in the way sought by the respondent. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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