Administrative Decisions Tribunal New South Wales Medium Neutral Citation: KT v Sydney Local Health Network (formerly Sydney South West Area Health Service) (No. 2) (GD) [2011] NSWADTAP 8 Hearing dates: On the papers Decision date: 04 March 2011 Before: Judge K P O'Connor, President Decision: 1. Appellant to pay the respondent's costs of: (a) preparation of Appeals Nos. 109025 and 109029; and (b) representation at hearing on 4 February 2011. Catchwords: COSTS - Respondent's application for costs of appeal - Granted Legislation Cited: Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Health Records and Information Privacy Act 2002 Privacy and Personal Information Protection Act 1998 Cases Cited: AT v Commissioner of Police [2010] NSWCA 131 KT v Sydney South West Area Health Service (GD) [2010] NSWADTAP 60 Rae v Commissioner of Police, New South Wales Police Force (No 3) [2010] NSWADT 254 Category: Costs Parties: KT (Appellant) Sydney South West Area Health Service (Respondent) Representation: Counsel A Britt (Respondent) KT (Appellant in person) Sydney South West Area Health Service File Number(s): 109025, 109028 and 109029 Decision under appeal Citation: KT v Sydney South West Area Health Service [2010] NSWADT 94 Date of Decision: 2010-04-15 00:00:00 Before: General Division File Number(s): 093096 REASONS FOR DECISION 1This decision deals with the respondent's application for the costs of three appeals brought by Mr KT, all of which were dismissed: see KT v Sydney South West Area Health Service (GD) [2010] NSWADTAP 60 (2 September 2010). 2Two of the appeals - file nos. 109025 (#25) and 109029 (#29) - related, respectively, to the principal decision and the costs decision in one case; while the third appeal - file no. 109028 (#28) - related to the principal decision in another case. 3Both cases have as their broad context KT's employment relationship with the Royal Prince Alfred Hospital, a hospital managed by the respondent (then known as the Sydney South West Area Health Service, now known as the Sydney Local Health Network). They were brought under the Privacy and Personal Information Protection Act 1998 (the PIPP Act) and the Health Records and Information Privacy Act 2002 (the HRIP Act). In the first case KT challenged the lawfulness of disclosure of personal and health information relating to him, his wife and daughter. In the second case KT challenged the agency in relation to the speed of its response to an application made by him for access to documents relating to him. In respect of the first case, the Tribunal held that there had been no contravention of the Acts mentioned by the respondent. In the second case it held that there had been no excessive delay in processing the application and therefore no breach of the standard set out in both of the Acts mentioned. Respondent's Costs Application 4The Appeal Panel's decision dismissing the appeals included directions for submissions on costs, the respondent having foreshadowed an application. The respondent filed its submissions on 13 September 2010. The appellant filed his submissions on 29 September 2010. 5The Appeal Panel for this purpose is constituted by the President sitting alone as permitted by s 24A(2) of the Administrative Decisions Tribunal Act 1997 (ADT Act) in respect of an 'ancillary function', here an application for an order for the award of costs (see s 24A(1)(a)). 6Section 76 of the ADT Act provides: 76 Circumstances in which hearing may be dispensed with The Tribunal may determine proceedings by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing if it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties. 7The following direction was given for disposing of the application: 3. Appeal Panel to make decision on the papers, as permitted by s 76 of the Administrative Decisions Tribunal Act 1997 , unless a party objects, in which case a telephone conference will be held to consider the objection. Any objection is to be placed in the first paragraph of the submissions. 8KT applied in his submissions for a telephone conference to be held. A telephone conference was held on 3 December 2010, and an order made for a further hearing to be held on 4 February 2011 to further consider the objection and any other submissions made by KT. 9Separately, KT filed on 8 September 2010 a notice of intention to appeal to the Court of Appeal against the decision of the Appeal Panel. On 30 November 2010 he filed a notice of motion seeking orders in respect of the costs order upheld by the Appeal Panel in matter #28 and any order for costs made in response to the present application. By decision made 13 December 2010 the Court (Campbell JA) accepted undertakings from the respondent that it would not proceed to enforce the order upheld by the Appeal Panel or any further order made as a result of this decision; or resist any amendment to the notice of appeal if an adverse costs order is made by this decision. 10At the hearing on 4 February 2011, KT handed up a second set of submissions. Attached to the submissions were documents filed in connection with Court of Appeal proceedings. The respondent had filed earlier on 29 November 2010 correspondence that had passed between it and KT in relation to the costs award upheld by the Appeal Panel. 11The practical result of the hearing held on 4 February 2011 was that KT took the opportunity to make a number of oral submissions disputing the respondent's costs application and countered with an application of his own for costs. The respondent replied to KT's application. 12In my view, the matter can now be disposed of without any further hearing, by reference to the written submissions and the further matters canvassed on 4 February 2011. Costs Rule 13In the case of applications brought against public sector agencies under either the PIPP Act or the HRIP Act, the provisions of Part 5 of the PIPP Act apply in both instances (the HRIP Act cases are placed under this regime by s 21 of the HRIP Act). Accordingly, the costs rule applying to applications for review of conduct is applicable (see further ADT Act, s 8(2)). The rule is that each party bears their own costs, subject to exception. Section 88 relevantly provides: 88 Costs (1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section. (1A) 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 it is fair to do so having regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal, or (vi) vexatiously conducting 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) any other matter that the Tribunal considers relevant. (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) ... (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. Respondent's submissions 14The respondent referred in its submissions to the way KT has conducted the proceedings given rise to the Appeal Panel decisions. 15It referred in particular to items (a)(vi), (b), (c) and (e) of s 88(1A), i.e. * disadvantaging the respondent by vexatiously conducting the proceedings, * prolonging unreasonably the time taken to complete the proceedings, * 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, * any other matter that the Tribunal considers relevant. 16The submissions refer to case-law explanations of what is meant by frivolous or vexatious proceedings. The submissions refer to the untenable nature of many of KT's claims. The submissions cite various negative observations made by the Appeal Panel in relation to aspects of KT's appeals. The submissions acknowledge that proceedings that are held to lack substance may not be vexatious. 17The respondent asserted that: (a) KT's submissions were largely 'unintelligible', and he ignored clear authorities that were contrary to his position; (b) his prospects of success were minimal or non-existent; (c) the nature of his submissions, and his manner of conducting the cases, prolonged the proceedings unnecessarily; (d) in light of the Appeal Panel rulings, the findings had no tenable basis in law and fact; (e) KT appears to be a serial litigant who commences proceedings with little or no thought or understanding of the issues or legal questions involved. The respondent submits that a public interest is served by discouraging such an approach to litigation. Appellant's submissions in reply 18In both sets of written submissions, the appellant devotes large portions to criticisms of the substance of the Appeal Panel decision or the procedural aspects of the appeal: see, for example, paras [7]-[52] of the submissions of 29 September 2010. They are not germane to the respondent's costs application. The same is true of the submissions handed up on 4 February 2011. 19The following matters relevant to the costs discretion were raised. One, KT noted that the Appeal Panel had dealt in the one hearing with two separate cases. In only one of them did the Tribunal at first instance make a costs order. He argues therefore that the case where no underlying costs order existed should be disregarded in considering the respondent's application for costs. 20This submission is not accepted. A respondent to the appeal is not barred from applying for the costs of the appeal simply because they did not make such an application below, or the application below failed. In the review jurisdiction of the Tribunal it is unusual for a successful government agency respondent to seek costs at first instance. However if an appeal is taken and is unsuccessful, it is more frequently the case that the government agency respondent seeks a costs award, and sometimes they are granted. The Appeal Panel has referred to the appropriateness of insulating agencies from the costs and inconvenience of a second round of proceedings especially where an appeal has been a weak one. 21Two, KT disputed that his conduct has been vexatious, and referred to a dictum to the effect that mere weakness of a case is not sufficient to justify an award of indemnity costs. In answer to a question from me at the 4 February 2011 hearing, Mr Britt for the respondent stated that the application was not one for costs on an indemnity basis. 22KT believes that there was an arguable basis to his underlying claims, and if he did use procedures in a misconceived way or by placing irrelevant material before the Tribunal, he did not behave in a way which could fairly be called vexatious. He saw it as significant that his disputes were not commercial in nature. This is an allusion to a consideration that has been taken into account in rulings on costs in the retail leases jurisdiction of the Tribunal, both at first instance, and more particularly on appeal. 23Three, in his submissions of 29 September 2010 he made a costs claim against the respondent and referred to indemnity costs. He repeated criticisms that he made orally in the earlier Appeal Panel proceedings about the way the respondent has conducted its case, and the way in which the respondent's legal representatives have dealt with him and his cases. 24Four, in his submissions of 4 February 2011 he referred to Tribunal case-law referring to 'special circumstances' that might justify the making of an award of costs. The term 'special circumstances' was used in the original version of s 88. The provision, as material, read: (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. 25The provision did not give any guidance as to what might constitute 'special circumstances'. That guidance was provided by a Practice Note issued by the Tribunal and case-law rulings. The provision was replaced by the present provision on 1 January 2009. The new provision applies to this appeal. 26The exception from the ordinary rule (each side bears its own costs) now turns on what is 'fair' in the circumstances, and s 88 now includes a non-exhaustive list of factors that may be taken into account. The amendment has been seen as being more favourable to the grant of a costs application than the previous provision: see generally, Rae v Commissioner of Police, New South Wales Police Force (No 3) [2010] NSWADT 254 (Equal Opportunity Division (Chesterman DP)) at [38]-[42] and especially AT v Commissioner of Police [2010] NSWCA 131 at [33] per Basten JA. Consideration (1) Appeal #25/#29 27This is the case in which the Tribunal made an adverse costs order. It criticised several aspects of the way the appellant conducted his case before the Tribunal. The Tribunal's comments are recorded in the Appeal Panel's earlier decision, in particular the comment set out at [41] of the Appeal Panel's reasons that the Tribunal's considered opinion was that the appellant should have withdrawn his application as early as 12 August 2009 and not pursued it any further. It is this conclusion that explains the Tribunal's decision to order that he pay the respondent's costs after that point. This finding has not been disturbed on appeal. In these circumstances, in my view, it must follow that the pursuit of the appeal is a continuation of the same unacceptable conduct. KT has continued to pursue a claim found by the Tribunal to be untenable, one not disturbed on appeal. In these circumstances, in my view it is fair to award costs to the respondent in respect of these two appeals. (2) Appeal #28 28The access-to-personal information provisions in the PIPP Act and the HRIP Act do not specify a time limit within which applications are to be dealt with. They simply impose a duty to process them 'without excessive delay'. Language of this kind invites contestation. The appellant put the question in issue in circumstances where the agency processed the application in 29 days. The Tribunal held that the delay was not excessive. 29His notice of appeal and submissions on appeal reopened that issue. They also reopened the decisions that the Tribunal made as to which of his communications constituted a valid application engaging the access-to-personal information machinery of the relevant legislation (either one or both of the two Acts mentioned, or the Freedom of Information Act 1989 ). 30His appeal submissions and those of the respondent were made subject to tight word limits set by directions. The respondent responded briefly to the appeal points raised by KT. 31In my view this appeal was not as unmeritorious as the other appeal (#25/#29). It did not take up a lot of time at hearing. 32I am not inclined to make any order in relation to the respondent's costs of this aspect of the appeal. 33KT raised in his submissions the possibility of discounting the respondent's legal representatives' costs of attendance at the hearing on 4 February 2011. That hearing was a brief one, commencing at 9.30 am and ending just after 10.00 am. In my view the costs for that attendance should not be discounted in the way suggested by KT. It would have been necessary for the representatives to attend in any event, and little time was taken dealing with appeal 109028. However the costs award should not in my opinion include any costs relating to the preparation of appeal 109028. 34KT also made a costs application. The respondent has conducted its reply to KT's appeal in an appropriate way. KT's criticisms mainly refer to what he regards as mistreatment by the respondent at the first instance stages of these and the other cases he has pressed. The application is dismissed. Order 1. Appellant to pay the respondent's costs of: (a) preparation of Appeals Nos. 109025 and 109029; and (b) representation at hearing on 4 February 2011. ********** 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: 16 March 2011