Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CYH v Family and Community Services (No.2) [2018] NSWCATAD 216 Hearing dates: On the papers Date of orders: 18 September 2018 Decision date: 18 September 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: C Ludlow, Senior Member Decision: (1) The respondent is to pay 80% of the applicant's costs of these proceedings, including the costs application, as agreed or assessed. (2) The order made pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure or publication of the name of the applicant in these proceedings is continued. Catchwords: COSTS – whether special circumstances exist - costs order made Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Cases Cited: Brodyn Pty Ltd v Owners Corporation – Strata Plan 73019 (No 2) [2016] NSWCATAP 224 CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 CYH v Family and Community Services [2018] NSWCATAD 84 Cripps v G and M Mawson [2006] NSWCA 81 Latoudis v Casey (1990) 170 CLR 534 Oshlack v Richmond River City Council (1998) 193 CLR 72 at 81). Category: Costs Parties: CYH (Applicant) Family and Community Services (Respondent) Representation: Counsel: Ms M Neville (Respondent) Solicitors: Randall Legal (Applicant) File Number(s): 2017/00033720 Publication restriction: Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013, the disclosure or publication of the name of the applicant in these proceedings is prohibited. REASONS FOR DECISION Background 1. On 17 April 2018 I delivered a decision in favour of the applicant in these proceedings (CYH v Family and Community Services [2018] NSWCATAD 84). 2. In my decision I found that the respondent had breached the Privacy and Personal Information Protection Act 1998 ("the PPIP Act") by the following conduct: 1. Breach of s 18(1) by the disclosure of a Client Information Form containing personal information to the applicant's employer ("CASPA") by one of the respondent's units ("CFDU"). 2. Breach of s 12(d) by failing to ensure that everything reasonably within its power was done to prevent unauthorised use or disclosure of the personal information provided to one of the respondent's service providers ("Wesley"). 3. Breach of s 18(1) by disclosing certain negative information about the applicant to CASPA in response to a request under Chapter 16A of the Children and Young Persons (Care and Protection) Act 1998 ("the CYPCP Act"), where disclosure of some of the information was not lawfully authorised or required, permitted, necessarily implied or reasonably contemplated by Chapter 16A. 1. In relation to causation of the damage claimed by the applicant, I found that while other factors not pertaining to the breach also contributed to cause the applicant's investigation and dismissal by her employer, the respondent's conduct in: 1. failing to ensure that everything reasonably within its power was done to prevent disclosure of the information to CASPA; and 2. disclosing certain information directly to CASPA; materially contributed to her investigation and dismissal. 1. I determined that the respondent's conduct materially, but not wholly, contributed to her loss of wages for a period of 12 weeks and liability for the assessed financial loss should be apportioned at the rate of 50%. I awarded damages to the applicant in the sum of $4539.41. 2. Following the decision's publication, the applicant filed an application seeking an order pursuant to s60(2) of the Civil and Administrative Tribunal Act 2013 ("the CAT Act") that the Respondent pay the Applicant's legal costs of and associated with the Tribunal proceedings, as agreed or assessed. Costs in the Tribunal do not automatically follow the event and the applicant claims that there are special circumstances warranting a costs order under s 60(3) (c),(d) and (g) of that Act. 3. She also seeks the continuation of a non-publication order in respect of her identity extending to any evidence from which it may be inferred pursuant to s 64(1) of the CAT Act. The basis upon which the order is sought is the sensitive and confidential nature of the alleged disclosures; and the sensitive nature of the Family Court proceedings which were part of the background to the case. Legislation 1. Section 60 of the CAT Act provides: "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. (5) In this section: costs includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal." Evidence 1. The applicant relies on the following uncontested evidence: 1. Her legal costs associated with commencing these proceedings up until 4 April 2017 were $2,818.00 (including GST). 2. Based on the information provided by her solicitor, after receiving a grant of Legal Aid to pursue the case, the legal costs associated with conducting the proceedings including the preparation of her costs application were $23,500 (including GST). This means that the total of her legal costs were $26,318 (including GST). 3. It is a condition of the grant of legal aid that a final contribution will be imposed by Legal Aid NSW in accordance with their Policies and Guidelines. If the Tribunal orders the Respondent to pay all of her legal costs, then these costs are payable to Legal Aid NSW and she will receive the benefit of the award of damages. If the Tribunal does not order the Respondent to pay all of her legal costs, then Legal Aid NSW will impose a contribution that is equal to the cost of legal services paid by them. As the compensation awarded by the Tribunal is less than the value of legal services, then in accordance with Guideline 5.8 the contribution will be capped at 80% of the value of the award. This means that the applicant would receive $907.88 of the compensation awarded by NCAT in these proceedings. 4. The applicant contends that following her complaint and her application to the Tribunal the respondent maintained that it had not breached the PPIP Act and while it made offers of settlement (which at their highest, were less than half of the amount ultimately awarded) it did not accept liability. The parties' submissions 1. The applicant submitted that in interpreting the term "special circumstances" I should follow the authority of Cripps v G and M Mawson [2006] NSWCA 81 at [60] per Santow J (Mason P and Brownie AJA agreeing). That case concerned s 88 of the Administrative Decisions Tribunal Act 1997 which also referred to the Tribunal being satisfied that "special circumstances" warranting a costs order existed. The case has been followed in a number of decisions under the CAT Act. His Honour held: "…it suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional." 1. She submitted that there were circumstances which took this case out of the ordinary, in particular: 1. The significant nature and effect of the breach of privacy; 2. The respondent's attitude in consistently and strenuously denying that its conduct was unlawful or that it had caused any loss or damage; 3. Two factual findings underpinning this Tribunal's decision came from the Respondent's own witnesses; 4. The applicant was successful save in the amount of damages awarded; 5. Legal representation was warranted given the nature and complexity of the proceedings and the adversarial position taken by the respondent; 6. If an award of costs is not made the applicant will only receive a small portion of the costs awarded. 1. The respondent opposes an award of costs. It submits that: 1. The discretion to award costs is not unfettered and requires the Tribunal to take into account all of the circumstances. The private and public purposes of the rule should be borne in mind (CPD Holdings Pty Ltd t/as the Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [31]). 2. Being successful in and of itself is not a special circumstance – there must be something more to justify an award of costs (CPD Holdings at [28]). Consideration 1. The discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal ordinarily bear their own costs (Oshlack v Richmond River City Council (1998) 193 CLR 72 at 81). Even if I am satisfied that special circumstances exist, I have a discretion as to whether or not to award costs; I am not obliged to do so (Brodyn Pty Ltd v Owners Corporation – Strata Plan 73019 (No 2) [2016] NSWCATAP 224 at [21] and [24]). The relative strengths of the claims made by each party (s 60(3)(c)) 1. The applicant submitted that two specific facts were within the knowledge of the respondent and it should have been aware of these without the necessity for a hearing. These were: 1. CASPA could not have provided any service to the respondent with regard to the applicant's children for conflict of interest reasons, therefore the first disclosure to CASPA of personal information should not have occurred and could not be justified; and 2. The fact that the respondent declined to notify the applicant's history to the Children's Guardian while maintaining that her history was relevant to the risk to children in the care of CASPA such as to be disclosed under Chapter 16A. 1. It is true that these facts were known to the respondent and they did ultimately play a role in the outcome. The respondent submits that there was no clear authority on the interaction of the PPIP Act and the CCYP Act in this context to guide its actions. This is true, however, it should have been clear that these factors weakened the arguability of its case. The nature and complexity of the proceedings (s 60(3)(d)) 1. The proceedings were undoubtedly complex and raised novel issues. As I understand the proper application of s 60(1)(d), however, complexity will be relevant to costs if the complexity made a hearing necessary or longer than it might otherwise have been or necessitated expenditure on legal costs. Certainly this was a matter which called for competent legal representation and the hearing went over two days. There is no criticism of the manner in which the respondent conducted the hearing. 2. The applicant submits that the proceedings were conducted on an adversarial basis and it would not have been possible for the Applicant to run this case, including cross-examining witnesses and making detailed legal submissions, without legal representation. I accept this submission. The evidence of Ms Kay, Ms Morrison and Ms Gava was key to the findings in the case. 3. The respondent submits that the proceedings raised complex issues concerning the interpretation of the PPIP and CCYP Acts, and the relationship between the two. It contends that the factual disputes between the parties were narrow and the Tribunal's predominant focus was on issue of public policy. 4. The respondent further submitted that the previously untested nature of the issues, the public policy nature of the decision and the guidance it will provide on these issues should result in a finding that no special circumstances warranting a costs order exist. The facts of this case were fairly unique, however, and it is not clear why the applicant should pay for a decision which will be of benefit to others. 5. The respondent submitted that I did not find that the breach of privacy materially contributed to or gave rise to the applicant's dismissal. 6. In fact, I found that two actions by the respondent materially contributed to the applicant being investigated and dismissed, although other factors not pertaining to the breach also contributed (at [98-99]). Other relevant matters ( s60(1)(g)) 1. I may also consider any other matter which appears to me to be relevant. 2. The applicant seeks that I take other issues of causation into account which were not found in my earlier decision. I decline to do so, as a costs application is not the appropriate forum to raise such issues. 3. The applicant submits that the breaches were egregious and that there were wider effects which were deleterious to the applicant as a result of the third breach. However costs are intended to be compensatory, not punitive (Latoudis v Casey (1990) 170 CLR 534). I do not consider that any such effects are relevant to the issues on costs. 4. As to the necessity to bring the matter to a hearing, the respondent denied that it had breached the PPIP Act but made two offers of settlement prior to the hearing. The agency maintained its position at the hearing and relied upon Chapter 16A and the "paramountcy principle" contained in s 9(1) of the CYPCP Act. The applicant was entitled to take the matter to hearing and in so doing obtained an award of damages more than double what was offered by the respondent. Conclusions 1. For the above reasons I consider that an order for costs in favour of the applicant is justified. However, as the preparation and the conduct of the hearing did not address all the most complex issues of the proceedings, namely the causation and quantum damages, I have determined that the applicant is entitled to 80% of her costs. 2. The non-publication order made in these proceedings is not objected to by the respondent and there is no reason why it should not continue to apply. Orders 1. The respondent is to pay 80% of the applicant's costs of these proceedings, including the costs application, as agreed or assessed. 2. The order made pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure or publication of the name of the applicant in these proceedings is continued. ********** 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: 18 September 2018