Administrative Decisions Tribunal New South Wales Medium Neutral Citation: KT v Sydney Local Health District [2012] NSWADTAP 23 Hearing dates: 23 March 2012 Decision date: 03 July 2012 Jurisdiction: Appeal Panel - Internal Before: Judge K P O'Connor, President K Fitzgerald, Judicial Member J Schwager, Non-judicial Member Decision: 1. Appeal dismissed. 2. The appellant to pay the respondent's costs of the appeal in the amount of its reasonable costs or the sum of $3000 whichever is the lesser. Catchwords: PRIVACY - Disclosure of former worker's personal information by employer agency in connection with defence of freedom of information application made to the workers compensation scheme agent - Tribunal held no contravention - appeal dismissed - Privacy and Personal Information Protection Act 1998, s 18, s 25. COSTS - Agency's application for costs of appeal - granted. Legislation Cited: Administrative Decisions Tribunal Act 1997 Health Records and Information Privacy Act 2002 Legal Profession Act 2004 Privacy and Personal Information Protection Act 1998 Cases Cited: AF v Minister for Health; Minister for Health v AF [2012] NSWADTAP 16 British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2 Chand v RailCorp [2009] NSWADTAP 64 Hawke v Chief Executive Officer, WorkCover NSW (No. 2) [2008] NSWADTAP 45 House v The King (1936) CLR 499 KT v Sydney Local Health Network [2011] NSWADT 171 KT v Sydney Local Health Network [2011] NSWADT 233 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48 PN v Department of Education and Training (GD) [2010] NSWADTAP 59 Tennent v Moukhlina (No 2) [2009] NSWADTAP 74 Category: Principal judgment Parties: KT (Appellant) Sydney Local Health District (Respondent) Representation: Counsel A Britt (Respondent) In person (Appellant) A Bridges-Webb, GILD Insurance Litigation Pty Ltd (Respondent) File Number(s): 119052 Decision under appeal Citation: KT v Sydney Local Health Network [2011] NSWADT 171; KT v Sydney Local Health Network [2011] NSWADT 233 Before: General Division File Number(s): 103229 REASONS FOR DECISION 1The appellant, KT, appeals against two decisions of the General Division of the Tribunal. He applied to the Tribunal under the Privacy and Personal Information Protection Act 1998 (PPIPA) (and if relevant, the Health Records and Information Privacy Act 2002 (HRIPA) for review of the conduct of the respondent agency. (The agency is now known as the Sydney Local Health District, previously Sydney Local Health Network and Sydney South West Area Health Service). 2The Tribunal found that the agency had not contravened PPIPA (or HRIPA) in the way it handled certain of his personal information, and formally ordered that no further action was required by the agency: KT v Sydney Local Health Network [2011] NSWADT 171 (15 July 2011). This is the first decision appealed. The second decision appealed is the Tribunal's decision to grant the agency's application for an award of costs: KT v Sydney Local Health Network [2011] NSWADT 233 (6 October 2011). 3The agency is responsible for the administration of the Royal Prince Alfred Hospital (RPAH). KT is an active litigant in this Tribunal. In January 2009 the agency dismissed him from his employment as a hospital assistant (working as a cleaner) at the RPAH. His litigation mainly links to the circumstances of this event. He had made a number of workers compensation claims during the course of his employment. 4In January 2010 he applied under the Freedom of Information (FOI) legislation then in force for documents about him held by the agency's worker's compensation scheme agent, SiCorp, the NSW Self Insurance Corporation. The agency was a third party to the claim, as many of the documents originated from it, and referred to events that occurred at the RPAH or referred to its personnel. SiCorp claimed exemption in relation to several documents. 5KT applied to the Tribunal for review of SiCorp's decision. SiCorp was represented by the Crown Solictor's Office. At the request of the CSO, the Director of Human Resources at RPAH, Ms Jackie Mills supplied an affidavit to which were attached documents relating to the disciplinary history of KT. In that affidavit she submitted that there were various considerations, privacy, risk management and the like, which should be considered in any decision to grant KT access to certain documents. The five documents were all documents known to KT, but not previously known to SiCorp. This disclosure is the conduct the subject of the first part of KT's review application. 6The second part of the application refers to different conduct. He also challenged the way the agency had managed his personal address information. On 29 March 2010, after he had ceased employment, the agency issued a barring order, because of concerns over him revisiting the workplace. He complained that the agency had not properly recorded a change of address that he had supplied, with the result that a barring order of 29 March 2010 was sent to the wrong address. He also complained that the agency did not check the accuracy of the address on record before using it, despite being notified of the change. 7In relation to the disclosure of the five documents, the Tribunal found that there had been no contravention. In relation to the address issues, it held that the review application was not competent as these issues had been addressed by an earlier review process, and they fell outside the scope of the present review process. Appeal 8KT challenges all aspects of both decisions that were negative to him. He frames his challenges as questions of law, and gives reasons as to why the appeal should be extended to the merits (see Administrative Decisions Tribunal Act 1997 (ADT Act) ss 112, 113). He notes correctly that the Appeal Panel is not bound to find an error of law in order to extend to the merits. The notice of appeal and the written submissions (filed 13 January 2012) contain numerous grounds. 9The agency noted that the notice of appeal was lodged 2 November 2011. It objected to the Appeal Panel considering the appeal as it related to the first decision. Section 113(3) of the ADT Act provides: (3) An appeal under this Part must be made: (a) within 28 days after the Tribunal gives the party oral reasons or written reasons for the appealable decision (whichever is the later), or (b) within such further time as the Appeal Panel may allow. 10The President, sitting alone, dealt with the interlocutory application. The President noted that the Appeal Panel's jurisdiction is engaged by an 'appealable decision' and that is defined simply as 'a decision made in proceedings'. It is not engaged by, for example, the making of orders. 11In proceedings where the decision-making stages are divided (say liability, order, costs) the literal result is that an aggrieved party would need to file an appeal after each of the decisions. This may be counter-productive, in that proceedings at first instance face the risk of becoming fragmented. Parties may be inclined to lodge appeals even though when finally decided they may not wish to press any appeal. Here the appellant had waited until the final part of the proceedings had been completed, and entered a timely appeal as against the final decision. In these circumstances the appellant was granted 'further time' in respect of that part of the appeal that related to the first decision. (1) Tribunal's Procedural Rulings 12The Member constituting the Tribunal (Judicial Member Molony) rejected a disqualification application from KT. He noted that he had made previous decisions adverse to KT. He did not regard this factor as giving rise to a reasonable apprehension of bias. He referred to the well-known authorities on the test to be applied. In a more recent decision, the High Court has formulated the test in this way: 'whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide': Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48 (1 December 2011) at [31] per Gummow ACJ, Hayne, Crennan & Bell JJ. This is consistent with the authorities to which the Member referred. 13In our view, for the reasons given by the Member, he properly did not disqualify himself. As he noted in his reasons, he has regularly been listed to deal with matters brought by KT. 14In some of the prior cases involving KT the Member has made adverse comments as to the way KT has conducted proceedings and the lack of merit of many of his claims. He has often rejected procedural applications made by KT. KT referred to various examples of adverse outcomes of those kinds. 15The fact that he has in the past made decisions adverse to KT's claim does not, of itself, found a reasonable apprehension of bias. It is commonplace for judicial officers, especially at the volume or more summary end of the justice system, to have parties come back before them frequently. They are duty bound to deal with each case independently and impartially. 16The matters raised by KT are not themselves sufficient to give rise to a reasonable apprehension. In no case has there been, for example, a finding of fraud or the like, the point at which it may be appropriate for a judge to stand aside when dealing with a later case involving the subject of the finding (as to which see British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2). 17It would be highly disruptive to the practical operation of the justice system if judicial officers were to stand aside simply because they had dealt with a party before, and made adverse rulings. Disqualification applications should not be allowed to become vehicles for judge-shopping. In this Tribunal, as the Member noted, complaints made by a party about a member who is part-heard to the Registrar or President are ordinarily not actioned until the case is decided; in the meantime the complainant is advised to raise the matter directly before the member and advise the other party of the objection. 18KT's appeal grounds make a number of general criticisms alleging denial of natural justice. We have reviewed the material available to us in relation to the conduct of the proceedings, and are satisfied that he was given an adequate opportunity to put his oral submissions, and have his written submissions considered. 19These grounds of appeal are dismissed. (2) Liability Decision 20In relation to the agency's sending of the five documents to SiCorp, the primary conclusion of the Tribunal is at para [49] where it said: In my opinion the provision by agency of Ms Mill's affidavit to SICorp and the Crown Solicitors Office (acting for SICorp), with attachments containing KT's personal information, to support claims of exemption for documents provided to SICorp by the agency, and the FOI Act, reasonably contemplated the resultant disclosure of KT's personal information. While SiCorp held the documents, it had received them from the agency in its role as scheme manager. The staff whose personal affairs would be disclosed, if KT's FOI application successful, were the staff of the agency. It was the agency whose operations might be detrimentally affected by release under the FOI Act. It was the agency that said it had obtained information in confidence, In those circumstances, in order to resist KT's FOI application, evidence going to those matters had to be provided by the agency. The FOI Act reasonably contemplated the release of KT's personal information going to those issues. 21The Tribunal is referring here to one of the grounds relied upon by the agency in justification of its conduct in forwarding the five documents. PPIPA provides, s 18: (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless: (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it. 22Section 25 provides: A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if: (a) the agency is lawfully authorised or required not to comply with the principle concerned, or (b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998). 23The Tribunal held that the provision was applicable, in that non-compliance may be said to be otherwise permitted or necessarily implied or reasonably contemplated in relation to exchanges related to workers compensation, relying as authority on the Appeal Panel decision in PN v Department of Education and Training (GD) [2010] NSWADTAP 59. The Tribunal also applied this principle to the interchanges that occurred with the Crown Solicitor's Office in ascertaining whether other employees mentioned in the five documents should have their identities protected from disclosure in respect of the agency's response to a Freedom of Information request that KT had made on an earlier occasion. 24A scheme agent such as SiCorp will have files that largely if not entirely consist of material supplied by its client agency. It follows that a scheme agent faced with an FOI application would closely consult the client agency, and in particular be concerned about any implications disclosure would have for the privacy of persons caught up in the matters the subject of the file, such as complainants in matters seen to be relevant to the compensation claim made by the worker. 25The Member took an approach to the operation of s 25 which was in line with the key authorities in this Tribunal on the way it is to be applied. In the case of FOI review proceedings of the present kind, it was open to it to conclude that their effective conduct reasonably contemplates the provision of information by client agencies which is relevant to the effective disposal of those proceedings. There is, as has been noted by the Appeal Panel in one of the authorities, a 'broad judgement' involved. 26We see no grounds for disturbing the Tribunal's judgement of this issue. This ruling is enough to dispose of the appeal as it relates to the first decision. 27We would express some doubt about the Tribunal's ruling that the disclosure of the letter to KT containing the first formal warning in relation to his conduct in the workplace (issued February 2007) fell outside the scope of PPIPA. The Tribunal reached this conclusion on the basis that it fell within an exclusion from the otherwise broad meaning of 'personal information' (s 3(1)). The Tribunal held that it contained 'information or an opinion about an individual's suitability for appointment or employment as a public sector official' (exclusion from meaning of 'personal information', s 3(3)(j)). 28As noted by the Appeal Panel in the past, the assessment of whether the exclusion applies should not be divorced from the context in which it is used. We accept that this information in its original context could well be seen as falling within the terms of the exclusion. However, here it was being supplied for use in a different context. See most recently on the application of this exclusion, the Appeal Panel's decision in AF v Minister for Health; Minister for Health v AF [2012] NSWADTAP 16. 29On this occasion the information was simply being appended to an affidavit for use in FOI review proceedings. It was not being used or disclosed to facilitate any consideration of issues to do with suitability for continued employment. However, in light of our earlier ruling we will not pursue this issue any further on this occasion. (As a postscript, we observe that it is not clear why the Tribunal having seen item 1 as immune from PPIPA did not extend its reasoning to the items 2 and 3 (copies of barring orders issued during the currency of his employment). Items 4 and 5 (a security incident report and a further barring order) post-dated his period of employment.) 30At the appeal hearing, KT spoke of the need to vindicate his reputation in relation to the disciplinary, barring orders and other information that was the subject of the five documents forwarded by the agency to SiCorp. These submissions point, we think, to a key aim of KT in pressing his privacy principles non-compliance case. The access and amendment principles provide a right to the subject of a record to have information amended so that it is accurate and is relevant, up to date, complete and not misleading (PPIPA, s 14). There was no request for amendment in KT's internal review application (see Ex R3 before Tribunal below), accordingly this subject was not addressed in the internal review report, and could not therefore be raised before the Tribunal on review. 31He raised as an issue the agency's reliance on an exception found in the PPIPA scheme permitting, without the consent of the subject, the use and disclosure of personal information in 'complying with a risk management scheme': Privacy Code of Practice (issued 30 June 2000 under PPIPA, s 31), cl 5; see further Tribunal's reasons at [6]. The Tribunal did not need to address the issue and did not, as it was satisfied that the transfers of personal information were lawful by reason of the operation of s 25. It accepted for this purpose that the information fell within the meaning of personal information and was not excluded by the suitability for employment exception. 32We do not consider that the points raised by KT demonstrate any arguable error in the approach of the Tribunal, whether as to the law or in the way it dealt with the merits of the dispute. Leave to extend to the merits is refused. 33As previously noted, the Tribunal declined to consider his case in relation to his address data, as it was satisfied that he had previously raised these matters in an earlier review application to the agency, and accordingly it would be an abuse of process to allow them to be reagitated in these later proceedings arising from a later internal review application. 34Clearly it would undermine the strict scheme of the Act if matters raised in an earlier internal review application, not further agitated at that time, could be added to an external review application that is founded on a later internal review application. We will not pursue this aspect of KT's appeal any further. 35This part of the appeal is also dismissed. (3) The Costs Decision 36KT's appeal challenges the Tribunal's order that he pay the agency's costs of the proceedings before it, such costs, in default of agreement, to be assessed under Division 11 of Part 3.2 of the Legal Profession Act 2004. 37The key relevant provisions of the ADT Act are these: 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. ... (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. 38The Tribunal in its first decision made a number of adverse comments in relation to the way KT had conducted the proceedings before it, see esp. reasons [14]-[22]. 39In its decision on costs, it referred to the relevant provisions of the ADT Act, in particular the check list of factors that might favour a costs award given in s 88(1A) and noted the following. One, the usual rule is that each party bear their own costs. The making of an adverse costs order involves the making of an exception, and should not be done lightly. Two, it noted that KT was a litigant in person. On the other hand, he was experienced in the making of applications of the present kind to the Tribunal. Three, the Member referred to his previous assessment of the protracted way in which he conducted the proceedings, and re-endorsed it. Four, he criticised his failure to pay heed to earlier decisions of the Tribunal as to the impropriety of seeking to widen the scope of the original application for internal review. Five, he rejected KT's criticisms of the way the agency conducted its case in the Tribunal finding that interruptions of counsel for the agency were for the most part justified (reasons, [19]). Six, he criticised his attempt to re-agitate the alleged misdirection issue. Seven, he described KT's claim as 'dubious at best' ([21]). Eight, he noted that there were many irrelevant arguments. Nine, the Member assessed KT's conduct as vexatious in the sense in which that term is used in s 88(1A)(a)(v), referring to relevant authority. 40A costs decision involves the exercise of a broad discretion involving a degree of subjectivity. An Appeal Panel would ordinarily only disturb a costs decision if there was a grave error in the exercise of the discretion, in the sense explained in House v The King (1936) CLR 499 at 505. 41The agency challenged the right of the applicant to have the costs appeal heard, and argued that it could only proceed with leave of the Appeal Panel. The making of a costs order involves the exercise of an 'ancillary function' of the Tribunal: ADT Act, s 24A. In contrast to the position in relation to matters involving 'interlocutory functions', leave is not required for a costs appeal to be made: ADT Act, s 113(2E). On the other hand, leave is required, as usual, for the grant of an application to extend to the merits. 42KT raised a number of issues in his appeal submissions. 43He criticised the failure to call Ms Roberts, the internal reviewer at the agency (her affidavit was no longer relied upon). He was deprived, as he saw it, of the opportunity to cross examine her. The Tribunal dealt, in our opinion, adequately with this issue in its principal reasons. 44It is not usual in proceedings in the privacy jurisdiction for the officer who is the author of the internal review report to be called on to appear, unless there are relevant matters of disputed fact to which he or she can attest. 45KT referred to ways in which he felt that the agency exacerbated the proceedings. He referred to their filings after the final day of hearing of the substantive application. We are satisfied that those filings were in accordance with directions, or involved a matter the agency was entitled to raise (one of the filings was the costs application). He contested assessments of his conduct made by the Tribunal at [12] (the account given of his submissions), [16] (negative observations as to his prolongation of proceedings) and [19] (again referring to the nature of his submissions). There are other instances of this kind later in the reasons. 46The Member is highly experienced in sitting in tribunals, with a record of more than 20 years across a wide variety of jurisdictions here and interstate. The Member made clear his overall view of the way KT had conducted the proceedings. We see no fundamental error of the kind required by House v The King that would warrant disturbing his overall assessment. 47This appeal is dismissed. (4) Agency's Application for Costs of the Appeal 48The Appeal Panel heard oral submissions from the parties in relation to this application. 49Mr Britt, of counsel, for the agency highlighted s 88(1A)(a)(vi), set out earlier in these reasons, which treats as a relevant factor 'whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings' to conduct such as 'vexatiously conducting the proceedings'. In his submission, the true motive for KT's 'endless litigation' had nothing do with privacy matters but rather to engage in proceedings that allowed him to re-ventilate the issues around the termination of his employment, and in that sense they are 'vexatious'. 50He referred in that regard to the broad brush way in which he pursues his cases, putting all points in issue, and similarly on appeal putting all points in issue. There is no attempt to confine the points in dispute. We agree that this situation throws an enormous burden on the agency in seeking to respond. 51In reply, KT said that the agency continued to victimise him. He referred to, what he saw as, the misconduct of the agency in engaging in confidential communications behind his back. 52This is a case where it is fair to depart from the usual rule that each party bears their own costs of proceedings in the Tribunal. 53The Tribunal's decision was a sound one. The Tribunal referred negatively to the way KT conducted his case before it. There are strong grounds for the agency's submission that KT's litigation is of a vexatious kind. Here the litigation arose as a satellite of earlier litigation in the Tribunal (the FOI case). It was reasonable of the agency with its obvious interest in the outcome of those proceedings to place before the holder of the documents information that might assist the holder's case for non-disclosure. KT's disciplinary history and the various barring orders pointed towards risks that might flow from disclosure which were relevant to that process. 54Further the present appeal had in our view little or no reasonable prospect of success, though one of the subsidiary points, in the context of many, was arguable (the s 3(3)(j) point). 55The Appeal Panel has observed in the past that a stricter approach to the issue of costs may be appropriate in cases where a weak appeal is pursued, and a respondent holding a favourable decision at first instance is exposed to another round of litigation before the Appeal Panel. As noted in Hawke v Chief Executive Officer, WorkCover NSW (No. 2) [2008] NSWADTAP 45 at [15]: If the losing party at first instance (whether citizen or administrator) brings forward an unmeritorious appeal, the other party should be given some protection from having to go around the course a second time. See also Chand v RailCorp [2009] NSWADTAP 64 at [56] and [64]; Tennent v Moukhlina (No 2) [2009] NSWADTAP 74 at [66]. 56The agency's application should be granted for its reasonable costs or the sum of $3000, whichever is the lesser. We have included a reference to a fixed sum, as we are concerned that 'open ended' costs orders using the formula 'as agreed or assessed' when employed in relation to litigants in person will simply move the theatre of conflict to another point in the litigation process. Orders 1. Appeal dismissed. 2. The appellant to pay the respondent's costs of the appeal in the amount of its reasonable costs or the sum of $3000 whichever is the lesser. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal. Registrar / Associate 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: 03 July 2012