Administrative Decisions Tribunal New South Wales Medium Neutral Citation: VE v Department of Human Services, Community Services [2011] NSWADT 60 Hearing dates: On the papers Decision date: 23 March 2011 Before: N Isenberg, Judicial Member Decision: 1.Respondent to pay the applicant in accordance with the 'consent orders' dated 1 February 2011 2.Respondent is to pay the applicant 's costs of and from 1 November 2010, including the costs associated with the application for costs. Catchwords: Privacy and Personal Information Protection Act 1998 - costs Legislation Cited: Administrative Decisions Tribunal Act 1997 Privacy and Personal Information Protection Act 1998 Cases Cited: Law Society of NSW v Dimitriou (No 2) [2010] NSW ADT 37 Kyriacou v. Chief Commissioner of State Revenue [2009] NSWADT 175 Alramon Pty Ltd v Jonamill Pty Ltd (No 2) [2009] NSWADT 302 Mahenthirarasa v State Rail Authority of NSW (No 2) [2008] NSWCA 201 Yong v Minister for Immigration and Multicultural Affairs (1997) 75 FCR Category: Costs Parties: VE (Applicant) Department of Human Services, Community Services (Respondent) Representation: Artemis Legal (Applicant) Department of Human Services, Community Services (Respondent) File Number(s): 103173 reasons for decision Background 1VE alleged that Community Services caseworkers released a hospital discharge summary about her son to his carer. That action was said to have disclosed information about VE and her close family members, in breach of several Information Protection Principles of the NSW Privacy and Personal Information Protection Act 1998 ( PPIP Act) . The carer then apparently discussed VE and her family with the media and a newspaper article was published. The article did not mention VE or her son by name but provided some of the personal information from which she claimed she could be identified. 2The caseworkers and the carer were counselled and an apology issued to VE, notwithstanding that Community Services found in its investigation, that 'as no identifying information was included in the [newspaper] article, no breach of [VE's] privacy has resulted from its publication.' 3VE brought proceedings in the Tribunal, alleging that her identity could be, and in fact was, ascertained from the newspaper article and that there had been a breach of her privacy as a result of which she suffered psychological harm. Issue 4The matter came before me on 31 August 2010 for a Planning Meeting, preparatory to listing the matter for hearing. A further, albeit truncated, Planning Meeting was held on 9 November 2010. At the final Planning Meeting on 1 February 2011 the parties indicated that the matter had settled, other than as to costs, and 'consent orders' were filed by the parties. 5I encouraged the parties to give further consideration to the costs issue and adjourned so that they could make submissions as to costs in the event that no agreement could be reached. It is apparent that the parties have, regrettably, preferred to adopt that cumbersome and expensive course rather than negotiate further on the limited issue of costs. 6Therefore the only issue to be decided is as to costs. Legislative background 7The Tribunal's power to award costs is found in S88 of the Administrative Decisions Tribunal Act 1997. As a general rule each party pays his or her own costs: S88(1) (see Law Society of NSW v Dimitriou (No 2) [2010] NSW ADT 37 , Kyriacou v. Chief Commissioner of State Revenue [2009] NSWADT 175, Alramon Pty Ltd v Jonamill Pty Ltd (No 2) [2009] NSWADT 302.) 8Despite the general rule, the Tribunal may order one party to pay the other party's costs 'only if it is satisfied that it is fair to do so having regard to' criteria which are set out in S88(1A): (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 . (Tribunal underlining) Consideration 9As I have observed , the general rule is that each party will pay its own costs in matters before the Tribunal. VE submitted however, that in the circumstances of her case, it is fair that the Department pay her costs. Fairness is the underlying feature of the criteria listed in S88(1A). As the Court of Appeal recently said in AT v Commissioner of Police, NSW [2010] NSWCA 131 at [33] : ... Although an order varying the general rule may be made "only if" the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order. The criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. The circumstances in which fairness may be identified are indicated by the specific attributes listed in sub-s (1A), but subject to the generality of paragraph (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b) -(g) of the Tribunal Act . 10The submission on VE's behalf relied upon a number of bases. I observe in that regard that in S881A(a) there are a number of examples of how a party may have conducted the proceedings which may have unnecessarily disadvantaged the other party to the proceedings. The list however is not exhaustive. S88A(e) also permits the Tribunal to take into account any other matter that it considers relevant. 11It is useful to observe some of the relevant events that have taken place in bringing this unfortunate matter to this point. The material before me is somewhat incomplete but there does not appear to be any dispute about the sequence of events in relation to VE's complaint: * In April 2010, VE sought an apology from Community Services, an assurance that no others would endure Community Services ' unauthorised release of their personal information, and compensation for the harm that she had suffered as a result of the release of her personal information. * During June 2010, Community Services completed its investigation and submitted it for review to the Privacy Commissioner. * By letter dated 30 June 2010, the Privacy Commissioner apparently recommended that compensation should be paid in the case. While 'recommendations' of the Privacy Commissioner are likely to be persuasive, they are just that - 'recommendations'. * By letter dated 23 July 2010 Community Services admitted that it had breached its obligations under PPIP Act, and apologised to VE for the actions of its caseworkers. Having found that it had breached its obligations, that, somewhat curiously, the review went on to find that as there was no identifying information in the newspaper article VE's privacy had not been breached. * Shortly afterwards VE was apparently informed that the matter was considered by Community Services to be closed. * As a result, VE commenced the current proceedings on 29 July 2010. 12It was submitted on VE's behalf that, having regard to its admission in the letter dated 23 July 2010, Community Services should have agreed in principal to pay compensation, subject to evidence of VE's claimed psychological injury, especially as Community Services had been on notice from April 2010 that VE was specifically seeking compensation . VE's solicitor contended that once Community Services acknowledged its breach in July 2010, it should have sought such evidence. I do not agree; the onus lies on an applicant to provide the evidence upon which he or she relies in making a claim. I acknowledge though the difficulty for an impecunious applicant who may not be in a position to arrange medico-legal evidence in the hope that their claim may be accepted in principal . 13I accept the submission on VE's behalf that some complexity of the substantive issues between the parties fell away once Community Services admitted that there was a breach: S 88(lA)(d) . The only remaining issue however, was not, as was submitted, as to quantum of compensation . Community Services contended that, while there was a breach of its obligations, there was no breach of VE's privacy because she could not be identified from the article. Even if this peculiar contention were not in issue, what remained was consideration of the appropriate remedy under S53(7) of PPIP Act; payment of compensation was but one option. In any event, consideration of compensation on the basis of psychological harm necessarily involves being satisfied, on the evidence, of a nexus between the breach and a claimant's condition. 14By the time of the first Planning Meeting no psychological evidence had been provided to Community Services by VE. On 21 October 2010 VE's solicitor provided a psychologist's report and affidavits from VE and her mother, and other evidence in support of her claim. No further evidence was provided and Community Services, presumably, in the absence of its own medico-legal enquiries, used that information in agreeing to the payment of compensation in the 'consent orders' . By 31 October 2010 therefore Community Services was equipped with all the information it required to compensate VE. T he filed preliminary papers contain a transcript of meeting with officers of Community Services and VE dated 9 October 2009 when VE was clearly distressed following the newspaper publication. A file note of a conversation between Community Services officers and VE's mother 3 days later discussed VE's destructive conduct. At another meeting on 6 November 2009 VE, again from the transcript, appears to have been distressed. On each occasion the publication was mentioned, but the greater theme of VE's distress was in relation to her baby being taken away and the care arrangements for him. 15VE's solicitor also submitted that s 88(lA)(c) applied in that Community Services maintained a claim that had no tenable basis in fact or in law . By 23 July 2010 Community Services had admitted that it breached its obligations under PPIP Act. At the first Planning Meeting in August 2010 the solicitor for Community Services conceded that there had been breaches but said that the information published in the newspaper could also have been from community knowledge. Community Services argued that what was required was evidence that VE had actually been identified from the newspaper article. It does not appear to have maintained this concern, because it went on to settle the matter without reservation as to admission of liability. 16VE also contended that, as a State agency, Community Services was obliged to conduct itself as a Model Litigant and that it had failed to do so: per Mahenthirarasa v State Rail Authority of NSW (No 2) [2008] NSWCA 201; 72 NSWLR 273; Yong v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155 at 166E. I observe that the Model Litigant Policy does not prevent an agency from testing claims. Community Services contended that , as a government department, payment of compensation must be approved by the Treasury Managed Fund and that it required evidence of VE's claimed psychological injury and some indication of personal damage or loss upon which to base a request for money from the public purse. 17The Planning Meeting of 14 December 2010 was aborted when Community Services ' solicitor was called away because of a medical emergency in respect of her child immediately after the Meeting commenced. No offer was made by Community Services in relation to costs for the time wasted by VE's solicitor when the Meeting was postponed to 1 February 2011. While I accept that matters beyond Community Services' solicitor's control caused her to leave the Planning Meeting urgently, it is unfair that VE should bear the cost of this wasted time, especially in circumstances where VE had, 2 months earlier, provided the information Community Services had requested : section 88(lA)(a)(iv). 18I was informed that VE has been known to Community Services for at least 10 years. VE's solicitor submitted that, as such, Community Services should have been aware that VE is illiterate and an alcoholic and that she has been unable to care for her children, all of whom apparently are or have been in Community Services' care. VE's solicitor submitted that VE's inherent vulnerability precluded her from personally asserting her legal rights, even though the Tribunal 'purports to be accessible to unrepresented litigants'. Examples were provided of tasks the solicitor felt obliged to undertake with respect to VE to explain the Tribunal processes. This was said to be especially necessary because VE had been rendered less able to pursue a remedy without legal representation because her capacity was significantly diminished by the disclosure of her personal information. I observe that t he medical evidence upon which VE's solicitor in support of this assertion however, concluded that VE's overall impairment was only 10% attributable to the media exposure. F urther, I have observed that, notwithstanding a breach of PPIP Act there is no entitlement to compensation . VE, dissatisfied with the outcome of her complaint brought, with the assistance of her solicitor, the present proceedings. As she had agitated at the political level about other aspects of her communications with Community Services, I do not accept that she was incapable of bringing proceedings on her own. In any event, many applicants before the Tribunal have significant disabilities. VE may also have been entitled to free legal assistance and I do not know if that was explored. Therefore I do not accept that the legal costs she incurred in bringing the proceedings were unavoidable, as was asserted. 19However, as I have observed, from 31 October 2010 Community Services had to hand all the information it required to make an offer of settlement of VE's compensation claim. Further expense to VE in maintaining these proceedings beyond that time is, in my view, attributable to Community Services, including the costs incurred by VE in making her costs' submission. In coming to that view I particularly note that there was very limited information before Community Services prior to that date upon which it may have been able to make an assessment of appropriate compensation . Having said that, n otwithstanding its obligation to the Treasury Managed Fund and its rights as a Model Litigant, some commercial considerations might have been brought to bear by Community Services at an earlier time, especially given that it was on notice of VE's distress. 20It is unfortunate that the parties were unable to resolve this limited issue, even after having reached agreement as to the quantum of compensation to be paid to VE on 1 February 2011. In this matter I consider there are good reasons for departure from the general rule and that it is unfair that VE should have to bear her costs from 1 November 2010, the day after Community Services was provided with evidence sufficient for it to make an informed and responsible decision in relation to the harm suffered by VE in consequence of its breach . Order (1)Respondent to pay the applicant in accordance with the 'consent orders' dated 1 February 2011 (2)Respondent is to pay the applicant 's costs of and from 1 November 2010, including the costs associated with the application for costs. 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: 23 March 2011