Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CEU v University of Technology Sydney [2017] NSWCATAD 280 Hearing dates: 18 & 19 August 2016 and 6 September 2016 Date of orders: 15 September 2017 Decision date: 15 September 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: R J Perrignon, Senior Member Decision: (1) The applicant is to pay the respondent's costs thrown away by her failure to comply with the Tribunal's orders of 17 November 2015 until 9 June 2016, such costs to include its costs of the following on an indemnity basis: (a) filing and appearing on its application for dismissal up to and including 9 June 2016, including preparation, and (b) considering, taking advice on, and responding to the material filed by the applicant on 4 January 2016, 15 March 2016 and 4 April 2016. (2) The respondent's application for costs is otherwise dismissed. Catchwords: ADMINISTRATIVE LAW – costs Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Cases Cited: Burns v Corbett; Gaynor v Burns [2017] NSWCA 3 eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 Gaynor v Burns [2015] NSWCATAP 150 Malouf v Malouf [2006] NSWCA 83 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Mendonca v Tonna [2017] NSWCATAP 176 Tickell v Trifleska Pty Limited (1990) 25 NSWLR 353; Hobartville Stud Pty Limited v Union Insurance Co Limited (1991) 25 NSWLR 358 Category: Costs Parties: CEU (Applicant) University of Technology Sydney (Respondent) Representation: Counsel: In Person (Applicant) A Flecknoe-Brown (Respondent) File Number(s): 2015/00383464 Publication restriction: The applicant's name is not to be published. REASONS FOR DECISION 1. In 2014 and 2015, the applicant was an enrolled student of nursing in the respondent university. On 22 June 2015, she complained to the University that it had breached a number of Health Privacy Principles in collecting and disclosing her health information. She was dissatisfied with the University's decision in relation to her complaints, and commenced these proceedings, seeking review of the University's conduct. On 13 March 2017, the Tribunal found that the University had not breached any of the Health Privacy Principles, and determined to take no further action. 2. The University later applied for an order that the applicant pay its costs of the proceedings, on an indemnity basis. The application is opposed. The University has filed and served written submissions in support of its costs application. The applicant has filed two sets of written submissions in opposition to it. 3. Section 60 of the Civil and Administrative Tribunal Act 2013 confers on the Tribunal power to award costs in certain circumstances, as follows. 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to 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) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. 1. As the section makes plain, costs in the Tribunal do not follow the event. To justify an order for costs, an applicant must first satisfy the Tribunal that there are 'special circumstances' warranting it. To establish special circumstances, 'it suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional': Gaynor v Burns [2015] NSWCATAP 150 (overturned on different grounds in Burns v Corbett; Gaynor v Burns [2017] NSWCA 3, but remaining a useful guide to the section); Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]. 2. The matters to which the Tribunal may have regard in determining whether special circumstances exist are set forth in subsection (3). They include 'any other matter that the Tribunal considers relevant'. 3. If the Tribunal is satisfied that special circumstances exist, it has a discretion to award costs. It is not obliged to do so. As the Appeal Panel observed in eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48]: [T]he discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs. Each situation must, of course, be assessed on a case by case basis to see whether or not special circumstances exist so as to warrant the award of costs. Grounds 1. In summary, the respondent relies on the following circumstances as constituting special circumstances: 1. The applicant's factual claims about the conduct of the respondent's officers were not made out. It follows that the proceedings were frivolous, vexatious and lacking in substance, and that her claim had no tenable basis in fact. 2. The proceedings were unnecessarily prolonged by her, because of her failure to comply with the directions of the Tribunal on 17 November 2015 to file and serve a document setting out the grounds for her complaints, the remedies she sought and her evidence in support. 3. The proceedings were unnecessarily prolonged by her request for an interpreter at hearing (which was granted) when she did not need one. 4. The proceedings were unnecessarily prolonged by her interjections from the bar table, even when she was represented by counsel. 5. By a Calderbank letter dated 14 March 2016, the respondent offered to settle the matter on the basis that it be discontinued without orders for costs. That offer was declined on 15 March 2016. 6. On 6 May 2016 and 2 August 2016, the University offered to update its medical records by including within them such other documents as the applicant might request, and did so whenever she asked. 1. The applicant represents herself on the costs application. She has filed written submissions in response. Though the grounds of opposition are not always clear, doing it best, the Tribunal understands them to be as follows: 1. The costs application is out of time. 2. The applicant represented herself until 9 June 2016. 3. The applicant suffers from depression. 4. The applicant is on a Centrelink pension. 5. 'Noblesse oblige' [the expression used by the applicant]. 1. Each of the grounds on which the University relies, and the matters on which the applicant relies, is considered in turn below. WHETHER SPECIAL CIRCUMSTANCES EXIST 1. Whether claims had no tenable basis; whether proceedings frivolous, vexatious or lacking in substance 1. The applicant claimed that on 17 April 2015 the University's staff had collected 11 pages from her diary, and that the collection was unreasonably intrusive, among other things. The Tribunal was not satisfied that staff had collected those 11 pages. It found that the applicant had provided a single page of matters which she wished to discuss, and that the retention of this document did not breach any Health Privacy Principle. 2. The applicant claimed that a letter written by Dr Cai on 21 April 2015, and which was included in the university's health records, was inaccurate, because it diagnosed alcohol dependence and recorded alcohol abuse. The applicant asserted that, despite her admissions to university staff to the contrary, she did not at any material time suffer from alcohol dependence or alcohol abuse. The Tribunal found that she had suffered from those conditions at the relevant times, and that she had consistently made admissions to that effect to Dr Cai and university staff. 3. The applicant claimed that any admissions of alcohol abuse made by her to university medical and other staff were the result of her inexpert use of English. The Tribunal found that, even though English was not her first language, the admissions were not the result of any language difficulties. 4. The applicant claimed that: 1. on 22 May 2015, Dr Cai had disclosed to Ms Edwards that the applicant had an alcohol dependency, 2. this information was disclosed for a purpose other than the purpose for which it was collected, 3. the former purpose was not directly related to the latter, and 4. she would not reasonably have expected the disclosure. 1. It was not disputed that the disclosure had been made by Dr Cai. The Tribunal found that Dr Cai disclosed the information to ensure the applicant's condition did not adversely affect her imminent clinical placement, that this was manifestly in the applicant's interests, that she would have expected it, and that it was directly related to the purpose for which Dr Cai collected the information – namely, for the purpose of treating a condition which, untreated, would adversely affect her studies. 2. The applicant claimed that on 22 May 2015, a psychologist employed by the respondent had disclosed to staff in the university's Special Needs Service a diagnosis of cognitive impairment, without the applicant's authorisation. The Tribunal was not satisfied that any such disclosure was made. 3. Each of the above disputed allegations of fact was essential to the success of one or other of the applicant's claims that the Health Privacy Principles had been breached. Each such allegation was found to be unproven. In my view, the claims based on those allegations were not tenable in fact. 4. This weighs in favour of a finding that special circumstances exist for the purposes of section 60(2). 5. It does not follow, however, that the proceedings were necessarily frivolous, vexatious or lacking in substance. Had the allegations of fact been proven, a different outcome might have occurred. Generally speaking, there was at least some evidence to support the allegations, and the applicant appeared to be strongly convinced of their truth, even though the Tribunal has not been satisfied of their accuracy. Even though the proceedings were unsuccessful, I do not consider they were, as a whole, frivolous, vexatious or lacking in substance as submitted by the respondent. 2. Failure to comply with Tribunal's orders 1. At case conference on 17 November 2015, the applicant represented herself. She was ordered to file and serve documents setting out the grounds for her complaint, the remedies she sought, and her evidence. On 4 January 2016, she filed over 100 pages of documents. These documents did not indicate, in any intelligible way, the grounds on which the applicant relied, the evidence she would give, or the remedies she sought. Neither the Tribunal nor the respondent were able to discern from the documents the case the respondent was required to meet. 2. A further case conference occurred on 19 January 2016. The Tribunal urged the applicant to seek legal advice. The respondent faced the very real prospect of contesting proceedings in which it had no notice of the case it was required to meet. It sought dismissal of the proceedings, for failure to comply with the orders of 17 November 2015. The Tribunal ordered the respondent to file and serve any such application by 16 February 2016. 3. On 16 February, the respondent did so. The applicant filed written submissions on 15 March and 14 April 2016. These submissions, likewise, did not comply with the orders made on 17 November 2015. 4. On 6 May 2016, the dismissal application came on for hearing. The Tribunal, seeing that the orders of 17 November 2015 had not been complied with, and that the applicant continued to represent herself, urged her to obtain legal representation. It adjourned the hearing of the dismissal application, to enable her to do so. 5. On 9 June 2016, the applicant appeared at the adjourned hearing, ably represented by counsel. At the Tribunal's request, her counsel prepared and tendered short Points of Claim, setting out the grounds for complaint and remedies sought, in partial compliance with the orders of 17 November 2015. For the remainder of the proceedings, the applicant continued to be represented by counsel, and the proceedings were conducted competently and with due despatch. 6. However, the respondent ought not have been put to the unduly onerous and unnecessary task of reviewing the voluminous documentation provided on 4 January 2016, 15 March 2016 and 4 April 2016, none of which complied with the orders of 17 November 2015. By failing to comply with the orders of 17 November 2016, the applicant unnecessarily prolonged the proceedings. 7. This constitutes a special circumstance, and weighs in favour of an order for costs. 8. By filing the three sets of documents 4 January 2016, 15 March 2016 and 4 April 2016, she unnecessarily disadvantaged the respondent by forcing it to incur legal costs unnecessarily in the reading of the material, considering and advising on it, and in bringing an interlocutory application to dismiss the proceedings as a result. This also constitutes a special circumstance, justifying an order to pay the respondent's costs thrown away by the failure to comply with orders, including the costs of incurred in respect of the application for dismissal. 3. Request for interpreter 1. The applicant was born and raised in Korea. English was her second language. In those circumstances, it was quite proper for her to request an interpreter, even if, as I have found, her facility with English did not interfere at relevant times with her communications with university staff. 2. I am not satisfied that the use of an interpreter unnecessarily prolonged the proceedings unnecessarily, or at all. This factor does not weigh in favour of a finding of special circumstances. 4. Applicant's interjections 1. It is correct to say that the applicant interjected from the bar table from time to time, despite being represented by counsel. I am not satisfied, however, that this prolonged the proceedings unnecessarily, or at all. This factor does not weigh in favour of a finding of special circumstances. 5. Calderbank letter 1. I am not satisfied that the applicant's rejection of the respondent's Calderbank letter of 14 March 2016 constituted a special circumstance. It was not an offer of substance. It was, in effect, no more than an offer to capitulate, attempting to obtain for the respondent the best result that it could have achieved had it been successful on all grounds. 2. Generally speaking, invitations to capitulate do not entitle the party making them to a more generous costs order than they would otherwise receive, even in jurisdictions in which costs follow the event: Tickell v Trifleska Pty Limited (1990) 25 NSWLR 353; Hobartville Stud Pty Limited v. Union Insurance Co Limited (1991) 25 NSWLR 358. Still less should such invitations justify a costs order in jurisdiction in which, like the Tribunal, costs do not follow the event. 3. In this case, the applicant's failure to accept the respondent's offer does not give rise to special circumstances. 6. Updating of health records 1. As the University submitted, it offered to, and did, update its records during the course of the proceedings in accordance with the applicant's requests from time to time. Doubtless it hoped that this might bring the proceedings to an agreed conclusion, but it did not do so. While the University's actions in this respect were commendable, they do not compel a finding of special circumstances. APPLICANT'S SUBMISSIONS 1. I turn to consider the applicant's submissions in opposition to a costs order. 1. Costs application out of time 1. On 13 March 2017, the Tribunal ordered that the University file and serve any costs application within seven days. The University filed its application on 20 March 2017. The applicant concedes that she received it on 21 March 2017. 2. Where a decision of the Tribunal fixes a period of time by reference to a given day, time is reckoned exclusive of that day: rule 6, Civil and Administrative Tribunal Rules 2014. In this case, the seven days is reckoned exclusive of the date of the order – namely, 13 March 2017. 3. The application was filed and served within time. This is not a factor which weighs against a costs order. 2. Depressive illness 1. To her submissions on costs, the applicant attached a memorandum dated 21 April 2015 from a disability support officer employed by the University to a member of its Faculty of Health. The memorandum recorded that the applicant was 'registered with the special needs service on a permanent basis, in relation to her psychological condition of Depression.' The relevance of this document to the current application is unclear. It does not prove that the applicant was suffering from depressive illness from 24 September 2015 when she commenced these proceedings. 2. Even if she did suffer from symptoms of depression during the conduct of these proceedings, the applicant has not demonstrated why symptoms of depression would explain or excuse the behaviours on which the respondent relies as constituting special circumstances. Even if the applicant did suffer from some unspecified form of depressive illness during her conduct of these proceedings, in the absence of evidence as to how it influenced her conduct, I would not be persuaded that it influenced or explained the way in which she conducted them. 3. For those reasons, this is not a factor weighing against a finding of special circumstances, or the making of a costs order. 3. The applicant represented herself until 9 June 2016 1. The mere fact that a litigant has exercised the right to represent herself in proceedings is not a bar to a finding of special circumstances, or to a costs order, if such a finding or order is otherwise justified. 4, 5. Pension, 'noblesse oblige' 1. The applicant's submissions under these headings appear were not clearly articulated. They appear to amount to an argument that a costs order should not be made, because the applicant is impecunious – being a single mother with a young child who has emigrated from Korea - and the University is an institution of financial substance. Impecuniousness might, in some circumstances, be a relevant factor. However, in this case her allegation is not supported by any evidence as to her assets, liabilities or income. I am unable to make any finding based on this allegation. 2. Even if I she is unable to meet a costs order, no attempt has been made to explain why her assets, liabilities and income excuse or explain the conduct complained of, or should otherwise dissuade the Tribunal from making a costs order which is justified by her conduct. 3. There is no basis for finding that a party should be disqualified from applying for its costs because it has substantial assets at its disposal, or that its application should for that reason be given less weight. 4. For all those reasons, this is not a factor which, in the circumstances of this case, weighs against a finding of special circumstances of the making of a costs order. Consideration and findings 1. I am satisfied that special circumstances exist, because: 1. the applicant's claims that Health Privacy Principles were breached by the respondent were not tenable in fact; 2. the applicant unnecessarily prolonged the proceedings, by failing to comply with the Tribunal's orders of 17 November 2016 until 9 June 2016, when she was represented by counsel; and 3. by filing and serving voluminous documentation on 4 January 2016, 15 March 2016 and 4 April 2016 which did not comply with the Tribunal's orders, the applicant unnecessarily disadvantaged the respondent by forcing it to incur the costs of reading and advising on the material, in effect giving the respondent little alternative but to apply for dismissal of the proceedings. 1. A finding of special circumstances empowers the Tribunal, in the exercise of its discretion, to grant a costs order if it thinks fit. 2. For the reasons already given, I am not satisfied that the matters raised by the applicant in her submissions weigh against a costs order. 3. As indicated, the first basis for the finding of special circumstances was that the applicant's claims were untenable in fact. It cannot be said, however, that there was no evidence to support her allegations. She herself supported her allegations by her own eye witness accounts, albeit informally in part. In the events which have occurred, her account has not been accepted. 4. If a costs order were to follow whenever an applicant fails to establish allegations of fact central to her claim, there would be little difference between this costs scheme and that which prevails in Courts where costs follow the event. That is not the legislative intention behind section 60. A mere failure to establish factual allegations, without more, does not compel a costs order, even where special circumstances exist. The absence of any evidence to prove the facts on which a claim is based might do so, but that is not the case here. 5. The second and third bases for the finding of special circumstances were the applicant's failure to comply with the Tribunal's orders of 17 November 2016 until 9 June 2016, and her filing of voluminous material on 4 January 2016, 15 March 2016 and 4 April 2016, which did not comply with the Tribunal's orders. This put the respondent in the position where it did not know the case it had to meet, and presented it with little option but to apply for dismissal. 6. The applicant submitted that her failure to comply with the Tribunal's orders, and the nature of the documents she filed on those three dates, resulted from her lack of legal expertise and language skills. In circumstances where she has been enrolled in a degree course, requiring the completion of assignments in English, and having regard to the facility with language disclosed in her written submissions, I am not persuaded that a lack of familiarity with the English language explains her failure to comply with the Tribunal's orders, or her actions in filing the documents which she did. 7. Similarly, the choice to represent herself up to 9 June 2016 is not a matter upon which she can rely to evade a costs order which is otherwise appropriate. As Bryson J, sitting in the Court of Appeal, has observed in the context of the failure of a self-represented to comply with the orders designed to let the other party know the case it has to meet (Malouf v Malouf [2006] NSWCA 83 at [183]): Courts should not go so far in accommodating the positions of unrepresented litigants as to make it an advantageous procedural step to dismiss one's lawyers, or to retain none. ... Without procedure, procedural directions and compliance, justice will not be done at all. The time, patience, resources and willingness to behave appropriately of those who do comply should have a place in consideration of what the Court should do when a party who has not complied with earlier directions seeks an extension of time, or some procedural indulgence by which earlier directions are disregarded. The compliant also have an entitlement to consideration, and their compliance should not be disregarded … by treating their opponent's obligation to comply with the Court's directions as less than important, or as superfluous. Procedural directions in this case, including Registrar Berecry's five directions to the appellant to file and serve his statements, were made so as to give reality to the opportunity to know in advance of trial the case which the respondents were to meet. ... There was nothing onerous in directing [the appellant] to reveal his evidence in chief in advance of trial. There are advantages in not complying with such directions, as one's opponent could prepare to meet the evidence if it were disclosed: if advantages are achievable by non-compliance, non-compliance is likely to occur. 1. In these circumstances, it is appropriate that the applicant pay the respondent's costs thrown away by her failure to comply with the Tribunal's orders of 17 November 2016 until 9 June 2016. Such costs are to include the respondent's costs of filing and appearing on its application for dismissal up to and including 9 June 2016 (notwithstanding the fact that the dismissal application was ultimately unsuccessful), including preparation, and its costs of considering, taking advice on and responding to the material filed by the applicant on 4 January 2016, 15 March 2016 and 4 April 2016, which did not comply with the Tribunal's orders. 2. Having regard to the 'underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs' (eMove at [48]), I am not persuaded that it is appropriate to extend the costs order beyond this. 3. The University has sought its costs on an indemnity basis. As the Appeal Panel observed in eMove at [59]: Indemnity costs are only awarded in limited circumstances. The discretion to do so must be the subject of careful reasoning (Degmam Pty Ltd (In Liq) v Wright (No 2) [1983] 2 NSWLR 354) and caution should be exercised in making such an award: Leichhardt Municipal Council v Green [2004] NSWCA 341; Ng v Chong [2005] NSWSC 385 at [13]. 1. The respondent submitted that the 'gravity of [the applicant's] conduct', described in detail in its written submissions, warranted such an order. It noted that the applicant had been put on notice by the Calderbank letter of 14 March 2016 that it might apply for such an order. 2. Generally speaking, factors justifying such a costs order on an indemnity basis include the following: 1. unreasonably refusing a genuine offer of settlement, 2. commencing or continuing a claim with no prospect of success, 3. abuse of process, or 4. serious misconduct or unreasonable conduct – for instance, by unnecessarily prolonging proceedings, making allegations of fraud or improper conduct without foundation, and behaviour which causes unnecessary anxiety, trouble or expense such as failure to follow proper procedure: Mendonca v Tonna [2017] NSWCATAP 176 at [60]-[64]. 1. In this case, by failing to comply with the Tribunal's orders of 17 November 2015 until 9 June 2016, and by filing and serving voluminous documentation which did not comply with those orders on 4 January 2016, 15 March 2016 and 4 April 2016, the applicant unnecessarily prolonged the proceedings. By failing to adhere to the procedure ordered by the Tribunal on 17 November 2016, the applicant put the respondent to unnecessary trouble and expense. Those are factors which weigh in favour of a costs order on the indemnity basis. 2. I am persuaded, having regard to all the matters above, that it is appropriate to order the applicant to pay the respondent's costs, to the extent they are ordered to be paid, on an indemnity basis. The costs application will otherwise be dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 15 September 2017