AF v Minister for Health; Minister for Health v AF

[2012] NSWADTAP 16

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

AF v Minister for Health; Minister for Health v AF [2012] NSWADTAP 16

Hearing dates:

5 December 2011; 27 January 2012 (Costs)

Decision date:

14 May 2012

Before:

Judge K P O'Connor, President
S Higgins, Deputy President
J McClelland, Non-judicial Member

Decision:

Appeal No 119025 (AF's appeal)

1. Dismissed.

2. Appellant's application for costs dismissed.

Appeal No 119029 (Minister's appeal)

1. Appeal allowed.

2. Application for review dismissed for want of jurisdiction in respect of the referral and dossier issues.

3. Application for review dismissed in relation to the complaint communications issues.

4. Respondent to pay the Appellant's costs, fixed at $5,000.

5. Respondent's application for costs dismissed.

Catchwords:

PRIVACY - Jurisdiction - Meaning of "Personal Information" - Exception in relation to Information or Opinion about Suitability for Employment - Scope - Interpretation - Held applicable - HEALTH PRIVACY PRINCIPLES - Purpose of Collection - Relevance - Direct Collection - Limitation on Use - Considered - DISCLOSURE - Complaint Communications - Minister's appeal upheld - Review applicant's appeal dismissed - Health Records and Information Privacy Act 2002, s 5(1); s 5(3)(m) - Health Privacy Principles 1, 2, 3, 4, 10 - Privacy and Personal Information Protection Act 1998, s 18

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Health Records and Information Privacy Act 2002
Health Services Act 1997
Privacy and Personal Information Protection Act 1998
Public Sector Employment and Management Act 2002

Cases Cited:

Cachia v Hanes (1994) 179 CLR 403
Department of Education and Training v PN [2006] NSWADTAP 66
EG v Commissioner of Police, NSW Police Service [2003] NSWADT 150
EY v Department of Corrective Services [2009] NSWADTAP 25
GL v Department of Education and Training [2003] NSWADT 166
OD v Department of Education and Training [2005] NSWADTAP 74
O'Sullivan v Medical Council of NSW [2010] NSWADTAP 64
TA v Department of Education and Training [2006] NSWADTAP 246
Y v Director General, Department of Education & Training [2001] NSWADT 149
ZR v Department of Education and Training [2010] NSWADTAP 75

Category:

Principal judgment

Parties:

119025
AF (Appellant)
Minister for Health (Respondent)
119029
Minister for Health (Appellant)
AF (Respondent)

Representation:

119025
In person (Appellant)
Dr J Lucy, Crown Solicitor's Office (Respondent)
119029
Dr J Lucy, Crown Solicitor's Office (Appellant)
In person (Respondent)

File Number(s):

119025, 119029

 Decision under appeal 

Jurisdiction:

9108

Citation:

AF v Healthquest & Anor [2011] NSWADT 99

Date of Decision:

2011-05-10 00:00:00

Before:

General Division

File Number(s):

073365

REASONS FOR DECISION

1. The Appeal Panel has before it two appeals in proceedings brought under the State's privacy laws, Privacy and Personal Information Protection Act 1998 (PPIPA) and Health Records and Information Privacy Act 2002 (HRIPA). The decision under appeal is AF v HealthQuest and Minister for Health [2011] NSWADT 99 (General Division).

1. The review applicant, AF, was employed by the State public sector agency, the Roads and Traffic Authority (RTA), between 2003 and 2007. The RTA referred her to HealthQuest for a health assessment. The review application relates to the conduct of HealthQuest (the agency) in connection with the personal information received by it for the health assessment, and to the way it handled information about AF's complaints as to its conduct.

1. The Tribunal rejected a jurisdictional objection from the respondent agency. It went on to determine the review applicant's case as it related to liability, and found that the respondent agency had contravened Health Privacy Principle 3 (direct collection where practicable) in its dealings with AF's personal information. It ruled against AF's case that there were other contraventions.

1. Each party has challenged the rulings contrary to their cases. The appeals were lodged before the Tribunal continued on to the question of appropriate orders in relation to the contravention. As they are interlocutory appeals, leave to proceed was required, and granted.

1. Both appeals raise questions of law, and apply for extension of the appeal to the merits. See Administrative Decisions Tribunal Act 1997 (ADT Act), ss 112, 113.

1. The Minister (appeal no 119029) seeks an order dismissing the application for review for want of jurisdiction; or in the alternative an order setting aside the one finding of contravention and dismissing the application. AF's appeal (appeal no 119025) seeks additional findings of liability, followed by remittal or extension to the merits for appropriate remedies.

Agency Party

1. On 1 July 2009 the agency was dissolved by a statutory instrument (the Health Services Amendment (Dissolution of HealthQuest) Order 2009). Its functions and liabilities were transferred to the Minister for Health ((Health Services Act 1997) (HS Act), Sch. 4, cl 4(1)(c)). For that reason, the Minister for Health became a party to AF's application for review.

1. The agency no longer exists as an administrative entity of government, and responsibility for its functions and activities is now vested in the Minister. While the Tribunal below retained HealthQuest as a party, we are satisfied that the opposite party to AF's application is now the Minister, and our record of the parties to the appeal is amended to show that.

Background

1. On or about 18 June 2007, purporting to do so in accordance with RTA sick leave policy, Mr Richard Boggon, the General Manager Human Resource Strategy at the RTA, formally referred AF to the agency for an assessment.

1. The agency was constituted as a statutory corporation on 1 July 2003 under s 41 and Sched 2 of the HS Act. Its functions included providing such health services as the Minister determined under s 53 of the Act. On 1 July 2003 the Minister issued a determination that the agency's functions included the provision of 'medical assessments for the purposes of ascertaining fitness for continuing employment or continued employment' (Declaration of Functions, Ex R7 in the material filed in the Tribunal).

1. Mr Boggon requested the agency 'to conduct an assessment of [AF's] current mental and physical health to determine whether she is fit for duty'. He provided it with a dossier of personal information that he considered relevant to the assessment, taking account of the protocol for this purpose issued by it. As instructed in the protocol, he copied his referral and the dossier to AF.

1. On 22 June 2007 she complained to the agency about its involvement in the matter, and requested it to return the letter of referral and the dossier to the RTA. After consulting the RTA, the agency declined her request.

1. In a series of further communications, she raised questions as to the agency's compliance with PPIPA and HRIPA. PPIPA applies to the dealings that State public sector agencies have with records of 'personal information'. HRIPA applies to 'organisations' and regulates their handling of 'health information'. The definition of 'organisations' covers State public sector agencies that deliver health services.

1. The agency agreed to AF's request to defer the assessment while she prepared a written reply to the RTA material. On 2 August 2007, Mr Boggon issued her with a formal direction to attend a medical assessment. Disciplinary action commenced. On 17 August 2007 she applied to the agency for internal review of its conduct referring to her rights under both of the privacy laws mentioned.

1. She put in issue two matters - one, the health service's receipt of the referral dossier ('the referral and dossier issues') and, two, the health service's transmittal of information about her complaints back to the RTA ('the complaint communications issue').

1. She resigned from the RTA on 11 September 2007, effective 14 September 2007. She had not attended for assessment by that time.

1. The agency answered her request for internal review on 8 November 2007. The internal reviewer considered that the health service was not bound by PPIPA and HRIPA and in respect of the handling of the information included in the letter of referral and the dossier because it fell within an exception to the meaning of 'personal information' and 'health information' and was not regulated by these laws. If it was wrong in that regard, it considered that it had not contravened any applicable requirements. Similarly it considered that it not breached the applicable requirements in respect of the complaint communications. AF applied to the Tribunal for external review on 7 December 2007. (There is a fuller chronology filed by the Minister filed 29 September 2010.)

Proceedings before Tribunal

1. The dispute has now spent several years in the Tribunal. There have been several planning meetings, attempts at settlement and a preliminary contest - the subject of an earlier Appeal Panel decision and a remittal, over applications for summonses made by AF. The decision under appeal is the first substantive decision of the Tribunal, and deals with the liability issues. It was delivered on 10 May 2011 after nine days of hearing.

1. In relation to the referral and dossier issues, the Tribunal held that the conduct fell within the scope of both laws, and that HRIPA took precedence as the information affected was 'health information' within the meaning of that law.

1. The Tribunal held that the agency had contravened HRIPA in one respect, by collecting the health information constituted by the referral dossier in contravention of Health Privacy Principle (HPP) 3. HPP 3 requires organisations to 'collect health information about an individual only from that individual, unless it is unreasonable or impracticable to do so'. In relation to its finding of contravention of HPP 3, the Tribunal concluded at para [47]:

[I]t was certainly practical for [HealthQuest] to obtain information about the applicant's state of health, her litigation with the RTA, her history of sick leave, and her history of worker's compensation claims directly from the applicant.

1. The Tribunal found no contravention of HPPs 1, 2, 4 and 10.

1. The Tribunal gave specific reasons in support of its findings as to HPPs 1 and 3: reasons [47]-[54]. In relation to HPPs 2, 4 and 10 it simply accepted the analysis provided in the agency's submissions without further elaboration: [55]-[56].

1. In relation to the complaint communication issues, the Tribunal rejected AF's submission that records of her complaint communications had been wrongly disclosed, the relevant law for this purpose being PPIPA (IPP 11, s 18).

(1) The Referral and Dossier Issues

1. The agency's instructions to employers wishing to use its services for employee assessments required employers to complete a form HQ1, entitled 'Request for Services'. The form's text referred public sector employers to their obligations under the Public Sector Employment and Management Act 2002 or related legislation. It advised them to follow a procedure of copying all referral material to the affected employee, and advising the employee of their right to provide a written response to the referral and that they may also provide a response in person at the assessment interview.

1. In respect of 'Fitness to Continue requests', the form said (as relevant to this case):

A written report must accompany the HQ1 form. The report must focus on seeking medical advice on whether the employee's health prevents the employee undertaking the inherent requirements of the position or adversely affects health and safety. Please refer to the 'Fitness to Continue Checklist' to ensure all relevant information is included.

1. Mr Boggon's letter of referral is headed 'To Whom It May Concern' and is seven pages long, and was copied to AF. It attached the Request for Services form. There are seven boxes for 'Services Required' and he ticked the box 'Fitness to Continue'.

1. The letter of referral dealt with the following topics: (1) AF's employment; (2) Absences; (3) Participation in Legal Proceedings; (4) Documents; (5) Questions.

1. The referral had the following attachments: (a) HealthQuest checklist; (b) the HQ1 referral form; (c) Project Brief for the Review of Registration and Licensing Forms [the work to which AF had been assigned since her return to work in December 2006]; (d) leave record from 1 January 2006 to 6 June 2007; (e) copies of medical certificates supplied by AF in respect of her absences; (f) email from AF to Mr Boggon, 25 May 2007.

1. As to her employment history with the RTA (item (1)), the material showed that AF commenced employment with the RTA on 7 July 2003 in the position of Senior Program Officer, Speed Management, USS Grade 9, Road Safety Strategy Branch, Road Safety & Road User Management Directorate, having previously been employed by the RTA as a skill-hire contractor. She was deemed a displaced employee as a result of a management review on 18 November 2005. On 18 July 2006 she was declared an excess employee. She was offered a voluntary redundancy package, which she declined.

1. Under the RTA's 'Management of Displaced Staff Policy' and its associated Guidelines, displaced and excess staff are required to undertake projects or tasks that they have the ability to carry out. She reported as from 18 December 2006 to the Manager, Road User Strategic Projects, undertaking a project to review the RTA's registration and licensing forms.

1. AF's email referred to at attachment (f) included the following paragraphs:

My health condition is currently deteriorating under the stressful environment created with some decisions made by the RTA, and actions undertaken by the Manager Injury Management and Claim Services, and the Manager Workplace Conduct.

I am currently on a gradual return to work, I believe that I cannot continue to work in such a stressful environment created with this situation, and I need an urgent appointment of an Injury Management Coordinator, in accordance with the RTA relevant policies and procedures. I also need to provide my original WorkCover medical certificate, as required by the relevant legislation.

1. At item (5) of the referral, Mr Boggon asked the following 'Questions':

Given [AF's] history of absences since 31 May 2006 and her record of participation in legal proceedings in that period, your views on the following are requested:

(a) Does [AF] have a medical and/or psychological or psychiatric condition which would affect the performance of her work duties;

(b) If the answer to (a) is 'Yes', what is the nature of the condition?

(c) Is she fit to perform all the inherent requirements of the Project?

(d) If she is not fit to perform the inherent requirements of the position, which duties is she fit to perform and what restrictions would need to be placed on her duties?

(e) If she is not fit to perform any duties at this time, when is it reasonably likely that she will be fit to perform her duties?

(a) Minister's Appeal

(i) The Exception to the Meaning of 'Personal Information'

1. Both in PPIPA and HRIPA, 'personal information' is defined as:

personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion (HRIP Act, s 5(1)); PPIP Act, s 4(1)).

1. The information conveyed by Mr Boggon clearly fell within the above definition.

1. The Minister's position is that a limitation on the meaning of 'personal information' has the effect of removing the information under notice from regulation by either of the privacy laws. Both Acts provide that personal information does not include:

... information or an opinion about an individual's suitability for appointment or employment as a public sector official (HRIP Act, s 5(3)(m); PPIP Act, s 4(3)(j)).

1. The Tribunal gave extensive reasons at [12]-[44] for rejecting the agency's case in this regard. Grounds of appeal nos 1 and 3 focus on paras [39]-[40] of the reasons:

39 ... The only advice that was being sought by the report was whether the applicant had a medical condition affecting her performance of her current duties and, if so, to what extent and for how long. So characterised, this was a limited type of enquiry and one which was qualitatively different to an enquiry as to the suitability of an individual for employment. The report did not raise nor canvass the question whether the applicant's employment, by reason of her medical condition, should be terminated say by involuntary retirement. If this had been the case, the relevant "context" may well lead to a finding that suitability for employment was being canvassed. The requested report may well have been a step in this direction, or may have eventually become so, but the evidence is silent in this regard and no finding can be made that this requested report had any nexus with something of this nature. The submitted report, it should be noted, does not raise any issues as to the applicant's competence or aptitude to perform her duties as it only enquires as to the state of her health and how that did, or did not affect her ability to perform her current duties. An injured worker may well be regarded as suitable for employment even though unable to perform particular duties by reason of health restrictions. On the evidence, the enquiry went no further than this, there being no circumstances demonstrating that the enquiry went further so as to question her suitability for employment within the principles developed in Y v Department of Education and Training (op cit). In particular, Mr Boggon, when giving evidence, explained the referral to the respondent essentially upon the basis of his concern for the applicant's best interests and to ensure that she was getting the support required (transcript 22.02.10 at p55[10] to [24]). The Tribunal is well persuaded that this was the true position by the fact that the applicant had returned to work on limited duties and there being no evidence that she experienced any difficulties in performing those duties.

40 The respondent's second submission directed attention to the information contained in the referral documents (exhibit R1 at [19]) and argued that the information provided was the minimum necessary to conduct a "fitness to continue" assessment. Here, the respondent appears to be equating "fitness to continue current employment" with "suitability for employment as used in the exemption provisions of the two statutes. However, for the same reasons as given above, there is no evidence to suggest that the enquiry in fact went beyond health restrictions that may apply to continued employment and extended to "suitability for employment". Again, Mr Boggon's evidence explained the referral to the respondent essentially upon the basis of his concern for the applicant's best interests and to ensure that she was getting the support required (transcript 22.02.10 at p55 [10] to [24]).

1. Grounds of appeal nos 1 and 3 are:

1. The Tribunal applied the wrong test in determining that information contained in the RTA's referral letter to HealthQuest was not information about the suitability of the respondent for employment as a public sector official ... when it relied upon the circumstance that the letter did not canvass the question whether AF's employment should be terminated ... The Tribunal erred in adopting a restrictive view of the meaning of 'suitability for employment' which is not justified by the language of the privacy legislation or the case law.

3. The Tribunal erred (at [39] and [40]) in finding that a request for advice as to whether an employee is unable to perform her current duties at work on medical grounds is, by its nature, not a request raising issues as to the employee's competence or aptitude to perform her duties and therefore cannot concern the employee's suitability for employment ...

1. The Minister contended that the decision was not consistent with Y v Director General, Department of Education & Training [2001] NSWADT 149 and the later case-law, including at Appeal Panel level.

1. The Minister accepted, as did the Tribunal below, the authority of the approach to the construction of the exception and application to the facts commended by the President (the presiding member of the present Appeal Panel), when sitting at first instance, in Y at [33]-[36]. AF accepted the authority of this case.

1. In that case the employee challenged under PPIPA statements about her made in a management review into the operation of a small, rural primary school where she worked as an assistant. The school had around 50 pupils. There was a history of turnover in the position of principal, with the incumbents asking to be removed because of opposition from some parents, seen as supported by the other full time teacher at the school and Y.

1. Y had put in issue four statements made about her in the review report. The Tribunal accepted the agency's submission that these statements were about her suitability for employment, and therefore fell outside the coverage of the Act; and rejected the applicant's submission to the contrary which was supported by the Privacy Commissioner.

1. The President said:

33 The test, as I see it, must in each case be whether having regard to the content of the information in issue and the context in which it is found it can reasonably be said to be 'about an individual's suitability for appointment or employment'. The management review team did not set out on its task with any specific term of reference relating to the applicant. The terms of reference were general ones. In light of the history that gave rise to the review, it is not surprising that issues arose in the course of the review as to the nature of the relationships between staff at the school. The review formed views as to the applicant's suitability for continuing her employment at this school. The three texts that precede the fourth text making the transfer recommendation should be viewed in that context. (As it has transpired the transfer recommendation has not been implemented.)

34 I acknowledge the Privacy Commissioner's submission that a management review does not belong to the routine personnel process of agencies. I accept that this in not an instance of information being generated in, for example, a selection, promotion, discipline or involuntary retirement process. But a management review is itself an orthodox instrument of administration, and one which will frequently look at the performance of employees.

35 A management review of the operation of a small primary school triggered by parent complaints will, it seems to me, inevitably focus on (among other things) work practices and work arrangements. The principal and the teaching staff face the risk that their performance in the work place may be assessed. Information may be collected and opinions formed by the management review which bear on the suitability of the employment of individual members of staff. The applicant has found herself in that unhappy situation.

36 As I see it, the protection against an over-reaching application of this exclusion is to be found in the word 'suitability'. The information in issue must be able to be shown to be information 'about ... suitability.' It must contain within it language which indicates to an objective observer that the information canvasses the aptitude and competence of the employee with respect to their current or prospective employment (and can embrace such matters as co-operativeness, ability to work effectively as part of a team and interpersonal skills). If this approach is adopted, then it would be an unusual case where the exclusion would apply outside what I have described as the routine personnel context (that of recruitment, promotion, discipline and involuntary retirement).

1. The use of the word 'must' in para [36] above is, we think on reflection, too strong. The question is always a broader one of context and content.

1. The subsequent case law includes the cases considered by the Tribunal in this instance, GL v Department of Education and Training [2003] NSWADT 166; EY v Department of Corrective Services [2009] NSWADTAP 25; and OD v Department of Education and Training [2005] NSWADTAP 74.

1. Other relevant cases in this line of authority are EG v Commissioner of Police, NSW Police Service [2003] NSWADT 150; Department of Education and Training v PN [2006] NSWADTAP 66; and TA v Department of Education and Training [2006] NSWADTAP 246.

1. The Minister made detailed submissions as to the type of jurisdictional error that might be involved in misapplying the exception to the facts. The Minister submitted that the determination of whether the personal information under notice was covered by the law raised a question of jurisdictional fact (see ground of appeal no 4). If the Appeal Panel did not agree with that analysis, the Minister submitted that a mistake in relation to that matter at least meant that the Tribunal would mistakenly have asserted jurisdiction. We do not see it as necessary in this case to review the complex case law discussed in the Minister's submission which divides jurisdictional error into errors as to jurisdictional facts (errors as to essential factual preconditions to jurisdiction) and other errors going to jurisdiction.

1. We accept that the issue is a jurisdictional one at least in the second sense.

1. In its reasons, the Tribunal had commenced by noting that it was open to interpret the exclusions broadly, and that a broad view might hold that s 5(3)(m) might cover any personal information (as defined) that has a 'nexus, for one reason or another, with appointment or employment as a public sector official' and continued (para [13]) that:

On this broad construction it necessarily follows that the referral, given that it is concerned with the applicant's ability, on medical grounds, to engage in her employment, would fall within the exemption.

1. The Tribunal returned to this point late in its reasons at para [42] of its reasons:

42 The respondent's two submissions may be combined and dealt with in a simpler way. They, in substance, are based on the premise that whenever information about the health of an employee is to be considered as to what effect, if any, it may have on the ability of the employee to perform the duties of a currently held position, then, it necessarily follows, that the information is about the employee's suitability for employment. In general usage this is quite correct. However, to approach the issue with this premise [the broad approach to construction] in mind is to ignore the interpretations in relation to the exemption provisions that have been laid down by the authorities, as discussed above. These authorities show that whenever the circumstances are such so as to show that the information is about something which is qualitatively different, or different in kind, to an employee's suitability for employment then the exemption provisions are not engaged. The existence of such a qualitative matter will, as the authorities show, depend on the evidence adduced in each case and enquiry must be directed to the nature of the information itself and the context in which it is to be found.

1. It will be seen that the Tribunal in both these comments recognised that the general or ordinary meaning of the words used in the exclusion might have a broad provenance.

1. However, after making the comments at para [13] it went on to note the history of case-law interpretation in the Tribunal which had been more restrictive, as the Tribunal saw it, in its approach.

1. It then sought to apply that interpretation to the case before it, and carefully examined all the documentation attached to the request for services (the 'content'), and the surrounding circumstances of the referral (the 'context').

1. We would reiterate at this point the observation made by the Appeal Panel in EY in 2009 that the guidance sought to be given in Y was not to be applied in substitution for the words used in the legislation. The Appeal Panel said:

29 We have dealt at some length above with the case law of the Tribunal dealing with the application of s 4(3)(j) as it has developed in relation to situations lying at the margins.

30 This is not a case of that kind. Here, the information was furnished to an employment appeals tribunal. The information was squarely cast by its presenter (the convenor of the selection panel) as information relating to EY's suitability for employment in the position for which he had applied.

31 The emphasis given in Y and subsequent cases to 'context' and 'content' is simply designed to assist the trier of fact in applying the exclusion to the facts. They are not legislative requirements.

Assessment

1. We will not deal in detail with the previous case law. Adequate accounts are given by the Tribunal in its reasons (in relation to those cases it considered), and in EY (as to the other cases).

1. In our view, the Tribunal did misapply the approach reflected in the earlier precedents. The exception has not been applied so strictly as to confine itself to circumstances where the issue is the termination of the subject's employment. The first case, Y, reflects this point. There the management review's observations did not put in issue her continued employment in any capacity. The conclusion was that she be moved away to another school. In our view an opinion about 'suitability for employment' may extend to suitability for the type and grade of employment in which the officer is presently engaged. Similarly, see TA at [33] where the exception was applied in the circumstances to the information taking the form of a complaint by a parent against a teacher; EY at [28] where it was applied to relocation.

1. In our opinion, 'aptitude' embraces the issue of the health fitness of an employee. While it was not listed above, it is a key consideration in relation to the employability of an individual and their employability for particular duties. In this instance Mr Boggon's evidence was that he was responding to recent communications from AF, in particular her email of 25 May 2007 in which she had raised her health condition.

1. The collection that occurred here is not one of a usual kind. In the usual situation the agency is an active collector of the subject information. This is an instance of a case where the 'collector', the agency, had a protocol in place for the use of its services which it left the client agency to interpret and apply. This situation lays open the possibility that some of the information that the client agency transmits might not constitute information bearing on the suitability of the person for employment.

1. The exemption should only be applied to material that goes to the subject matter of suitability for employment. But equally it is not unusual, we consider, for relatively elaborate detail to be given in situations where future continued employment and its nature is an issue. Here, we consider that it was reasonable for the manager to include the litigation history (the main point of contention as to relevance for purpose) given the questions he had raised in relation to AF's psychological or psychiatric state.

1. Clearly, in our view, absence records are relevant to the assessment task that was required of the agency as is such information as the current project brief and her overall work history.

1. This conclusion is enough to dispose of this appeal, and the proceedings apart from the complaints communications disclosure complaint.

1. In case we are wrong in our view on the jurisdictional objection, we will go on and deal briefly with the other points of appeal.

(ii) Objective Approach

1. Alternative ground of appeal no 2 is:

The Tribunal erred (at [39]) in taking into account an irrelevant consideration ... [being] the evidence of Mr Boggon ... as to why he referred AF to HealthQuest ... . Although context may be relevant to the determination of whether information falls within the suitability for employment exemption, such context must be apparent to an objective observer from the information (or document) itself. The privacy legislation does not require the recipient of the document (such as HealthQuest) to undertake an independent inquiry into the motives of its author in order to determine whether the information ... is 'personal' or 'health' information.

1. The process of 'collection' in this case was entirely documentary. We agree with the basic point of this ground of appeal. As would be commonplace for health services handling referrals of this kind, this agency was 'cold called'. In cases such as this, the circumstances need to be assessed in an objective way. The subjective state of the referring party's mind is of no relevance.

(iii) The Finding of Contravention of HPP 3

1. This issue is the subject of alternative grounds of appeal nos 5 to 8.

1. HPP 3 provides:

3 Collection to be from individual concerned

(1) An organisation must collect health information about an individual only from that individual, unless it is unreasonable or impracticable to do so.

(2) Health information is to be collected in accordance with any guidelines issued by the Privacy Commissioner for the purposes of this clause.

1. At paras [47] and [48], the Tribunal said (emphasis added):

47 The applicant's submissions are set out in exhibit A 1 & 2 and, at times, they are difficult to follow. This is due to a failure to distinguish between actual claims and arguments in support of particular claims, and to the presence of repetition. This is, of course, not meant to be critical of the applicant, who has argued her case ably. However, the respondent's submissions do provide a convenient and concise summary of the applicant's claims based on the provisions of the HRIP Act and may therefore be used as a starting point for deliberations (see exhibit R1 [9] ff). The alleged breach of Health Privacy Principle 3 (HPP 3) may be considered first, the respondent's submissions appearing in R1 at [30] and following. These submissions accept that the referral information was not collected by the respondent only from the applicant and therefore they focus on the exception provisions provided for in the principle under discussion. The points first made are that "impractical" does not mean "impossible" and that "unreasonable" means "beyond the bounds of reason", both being arguments that the Tribunal accepts. It would certainly be impractical, and perhaps unreasonable as well, for the RTA to have referred the applicant to the respondent without supplying the applicant's name and contact details with the initial referral and without advising the respondent that it wished to obtain a fitness report. An employer may certainly provide such information as otherwise the enquiry process cannot go forward. To this extent, there is no breach therefore of HPP 3. However, it was certainly practical for the respondent to obtain information about the applicant's state of health, her litigation with the RTA, her history of sick leave, and her history of worker's compensation claims directly from the applicant. It was equally practical to obtain any relevant history of communications with the RTA, referring here to the emails that were sent, directly from her. It cannot be suggested that the applicant would not have at least some knowledge of these matters, even if she did not have copies of all of the medical certificates that she submitted and did not have a complete history of her absences on sick leave. If this were shown to be the case, then it would be impractical, in the sense that the process of collection such information from the applicant cannot be put into practice, to collect a sick leave history and medical certificates from her. But this cannot be simply assumed. For the same reasons, it was not unreasonable for the respondent to have sought such information from the applicant, at least as an initial step.

48 Consequently, the respondent, by collecting the subject information otherwise than from the applicant, has, in the circumstances outlined, acted contrary to this principle, and the Tribunal so holds.

1. The Minister's grounds of appeal nos 5, 6 and 8 challenge this reasoning. Ground of appeal 5 is that the Tribunal erred in approaching the question of what was reasonable or practicable solely by reference to the specific relationship with AF and should have had regard to the position in relation to employees generally. Ground 6 is to similar effect. Ground 8 (as modified in the Minister's submissions) is that the Tribunal's conclusion was one that no rational or logical decision maker could have arrived at on the evidence.

1. It is difficult to disturb as an error of law a finding that has a broad evaluative quality, as is involved in deciding whether it was 'unreasonable or impracticable' to undertake direct collection.

1. The agency had put in place a practice whereby the employer in the first instance supplied the relevant records. The Minister's submission to the Tribunal was that an 'indirect' collection practice of this kind may be justified. The Minister submitted that a referral may well be the source of dissatisfaction to the affected employee, co-operation from the employee in furnishing the material may be difficult to achieve and the employer is likely to have in place administrative record-keeping systems that are comprehensive and well-managed.

1. Broader administrative consideration of this kind should, we consider, have been weighed in forming a view as to what was practicable or reasonable in the circumstances. In matters of systemic practice, consideration of the issue of what is practicable or possible in the way of direct collection should not confine itself to the immediate relationship between the individual and the collecting party. In this case the relationship was trilateral not bilateral. The individual was in effect, being compelled by the employer to attend for assessment as an incident of their employment relationship. The agency's client was the employer not the employee. These complexities need to be addressed in a referral case of this kind.

1. Some consideration should also have been given to the protective procedure the agency had in place, requiring that the dossier be copied to the employee, which occurred in this case. In this way it sought to ensure that the interests of the employee were respected, and any criticism or correction the employee wished to make could be made.

1. In light of these conclusions which go to Grounds 5 and 6, we do not consider it necessary to go on and consider the very sweeping criticism reflected in Ground 8 (irrationality).

1. Ground 7 goes to a separate, supplementary point. Only information that is 'collected' can fall subject to the principles governing collection. The submission is that the Tribunal erred in finding that the agency should be regarded as having 'collected' the information sent to it, whether or not it was relevant to its functions.

1. At [21] the Tribunal said:

21 The respondent [HealthQuest] then submits that, alternatively, it only required the submission of relevant information that could be obtained by it lawfully. This argument has cogency, as the respondent had little control over information that was in fact sent it at first instance, save for providing adequate directions in its standard forms. It needed an adequate opportunity to assess the information to determine whether it fell within its requirements. However, in this case the respondent continued to hold the information after receipt, despite having ample time to consider the applicant's submission that it should be returned. The respondent therefore must be taken to have accepted that the information as provided fell within the terms of its requests. This is sufficient to establish that the information accompanying the referral in question was solicited for the purposes of the legislation (see s.4(5) PPIP Act; s.10 HRIP Act) and therefore collected by the respondent. In any event, the information supplied was, in fact, as requested; for example, the recent medical certificates, the performance report, sick leave records and position description (exhibit R3 p 9). The point taken by the respondent that some of the medical certificates were not recent (exhibit R11 at [8]) is without any factual basis. The first certificate is dated 24.06.04, almost 3 years prior to the referral. However, that certificate and many of the earlier ones that follow, refer to both depression and work related stress and thereby indicate what could have been the commencement of the relevant illness. Also, the context is one where the report refers to "frequent illness". Consequently, in these circumstances, all of the certificates provided contained information that could reasonably be regarded as falling within the respondent's request. In any event, the certificates dated early in 2007 clearly were "recent" medical records. This information, or at least part of it, was therefore clearly solicited by the respondent in these circumstances.

1. There is sometimes debate over what information obtained by a recipient through an indirect process of collection can be said to be 'collected' by it. An agency might receive information that is entirely unsolicited. In that instance it is given protection from having it treated as 'collected' for the purpose of the State privacy laws: see PPIPA, s 4(5); HRIPA, s 10.

1. In this case the agency did put in place a process for the collection of information relevant to its purposes that depended on the judgment of the agency holding and forwarding the information.

1. The Minister's submissions focus on the following statement in the above passage: 'However, in this case the respondent continued to hold the information after receipt, despite having ample time to consider the applicant's submission that it should be returned. The respondent therefore must be taken to have accepted that the information as provided fell within the terms of its requests.'

1. Before making this observation, the Tribunal makes the point that where an agency has a systematic instruction in place for the collection of information (as here), and allows for its services to be engaged in the way that occurred here, it is to be regarded as having 'collected' so much of the information provided in response to the instruction which responds properly to the terms of the instruction. In the passage challenged, it is dealing with the situation where the agency continues to hold the information. It is dealing with a circumstance where the agency had the opportunity to turn its mind to the question of relevance raised by AF. It was expressing a view as to the point at which a state of unsolicited receipt might be regarded appropriately as a 'collection' caught by the privacy laws. The Minister's submissions refer to the Appeal Panel's observations in the later case of ZR v Department of Education and Training [2010] NSWADTAP 75 at [57]-[58], esp [58]:

57 We would be inclined to the view that an agency practice involving the use of a complaints form gives rise to a 'collection' of information, and is not an instance of 'unsolicited' acquisition of information. That is most clearly the case, as we see it, in relation to the personal particulars that are required by the first part of the form. They are essential to the task of responding to the complaint, and also in ensuring that it is a genuine complaint.

58 As to the text authored by the complainant in relation to the matter of concern, we are inclined to the view that, insofar as the information provided is relevant to the purposes of the agency, it ought be regarded as collected, and not treated as unsolicited. It is not, as we see it, a mere instance of passive receipt. This is a situation where the practice of the agency is to get the complaint in writing and create a record. It is requesting the information to that extent.

1. The Tribunal in the present case was expressing a view as to the point at which an unsolicited transaction may be said to be a 'collection' caught by the law. We do not think it was ignoring the distinction in the way suggested by the Minister's ground of appeal. We do not see its approach as inconsistent with the approach reflected in the comments in ZR. In any event it treated all the information as relevant. In our opinion, the issue of 'over reach' is not raised by this case.

(b) AF's Appeal

1. AF's notice of appeal (as amended, 17 June 2011), under the question of law heading, lists 14 grounds of appeal followed by a short explanation of each of the grounds. There are 10 grounds in support of her request for the appeal to be extended to the merits. The final part of the notice of appeal seeks various orders, the primary ones being for entry of findings of contravention in relation to each of the principles put in issue. Her submissions divide the question of law grounds into seven categories of alleged errors. Most of the grounds take the form of a statement rejecting the reasoning adverse to AF, without referring clearly to any point of law that might have been misapplied or misunderstood.

(i) Applicable Law

1. We will deal first with the preliminary question of which Act is the applicable one. In her appeal AF contends that her case should have been decided by reference to both privacy laws (see, for example, grounds of appeal nos 4 and 5).

1. HRIPA imposes its standards on 'organisations' as defined. The agency was such an organisation, being a public sector agency that is a health service provider (HRIP Act, s 4, s 11(1)).

1. We accept that much of the information contained in the dossier was at source not information related to the health circumstances of AF (for example, the litigation history). However, the definition of 'health information' in HRIPA is a wide one. While some of the source information clearly fell within paragraph (a) (for example, sick leave records, medical certificates), the other information only falls within the definition because of the extended meaning given to 'health information' by paragraph (b). Section 6 relevantly provides:

6 Definition of "health information"

In this Act, health information means:

(a) personal information that is information or an opinion about:

(i) the physical or mental health or a disability (at any time) of an individual, or

(ii) an individual's express wishes about the future provision of health services to him or her, or

(iii) a health service provided, or to be provided, to an individual, or

(b) other personal information collected to provide, or in providing, a health service, ...

but does not include health information, or a class of health information or health information contained in a class of documents, that is prescribed as exempt health information for the purposes of this Act generally or for the purposes of specified provisions of this Act.

(The exempt health information exception does not arise in this case.)

1. We are satisfied that paragraph (b) sweeps up all the information presented in the dossier, and that the HRIPA protections were the ones to be considered in this case. The Minister's submissions are to the same effect. The Minister's submission points to the complexity that would arise if the one body of information fell to be assessed under both laws. The wide definition of 'health information' seeks to avoid that possibility. We agree with the Tribunal's observations on this matter.

(ii) The Alleged Contraventions

1. In presenting her original complaint, AF understandably referred to both the PPIPA and HRIPA as sources of protection. The Tribunal, as already explained, classified the referral and dossier information as 'health information', therefore HRIPA was the applicable law, with the result that the Health Privacy Principles needed to be examined. Her case was unsuccessful in relation to non-compliance with HPP 1 (the purposes of collection of health information), HPP 2 (information must be relevant, not excessive, accurate and not intrusive), HPP 4 (individual to be made aware of certain matters) and HPP 10 (limits on use of health information).

1. AF challenges each of the Tribunal's findings. As the appeal is unable to succeed because of our ruling on the jurisdictional objection, we will deal with the points briefly.

1. The first matter is whether, if HRIPA had been engaged, did HealthQuest's conduct infringe HPP 1, which provides:

1 Purposes of collection of health information

(1) An organisation must not collect health information unless:

(a) the information is collected for a lawful purpose that is directly related to a function or activity of the organisation, and

(b) the collection of the information is reasonably necessary for that purpose.

(2) An organisation must not collect health information by any unlawful means.

1. The Tribunal accepted that collections of the kind that occurred in this case were for a lawful purpose directly related to a function or activity of the agency. The Tribunal accepted that the collection was reasonably necessary having regard to the purpose for which the information was supplied, and the requirements imposed on those making the referral by the agency's protocol. In our view the material clearly supported those conclusions. We have set out the laws constituting the agency and the Declaration of Functions earlier in these reasons. As to the second matter, the agency received a referral of a usual kind, and the material it received was consistent with the instructions it gave referring agencies.

1. The Tribunal rejected AF's case in relation to breach of HPP 2, simply adopting the submissions of the Minister with which AF was familiar. HPP 2 states:

2 Information must be relevant, not excessive, accurate and not intrusive

An organisation that collects health information from an individual must take such steps as are reasonable in the circumstances (having regard to the purposes for which the information is collected) to ensure that:

(a) the information collected is relevant to that purpose, is not excessive and is accurate, up to date and complete, and

(b) the collection of the information does not intrude to an unreasonable extent on the personal affairs of the individual to whom the information relates.

1. The Tribunal should have given some express reasons on this point, albeit short ones.

1. The Tribunal's conclusion was correct. This principle does not apply to the present circumstances as this was not a case of direct collection from the individual.

1. The next point raised by AF was compliance with HPP 4. As this was a case of indirect collection, the relevant provision becomes sub-clause (2) of HPP 4. Sub-clauses HPP 4 (1) and (3) are also relevant.

4 Individual to be made aware of certain matters

(1) An organisation that collects health information about an individual from the individual must, at or before the time that it collects the information (or if that is not practicable, as soon as practicable after that time), take steps that are reasonable in the circumstances to ensure that the individual is aware of the following:

(a) the identity of the organisation and how to contact it,

(b) the fact that the individual is able to request access to the information,

(c) the purposes for which the information is collected,

(d) the persons to whom (or the types of persons to whom) the organisation usually discloses information of that kind,

(e) any law that requires the particular information to be collected,

(f) the main consequences (if any) for the individual if all or part of the information is not provided.

(2) If an organisation collects health information about an individual from someone else, it must take any steps that are reasonable in the circumstances to ensure that the individual is generally aware of the matters listed in subclause (1) except to the extent that:

(a) making the individual aware of the matters would pose a serious threat to the life or health of any individual, or

(b) the collection is made in accordance with guidelines issued under subclause (3).

(3) The Privacy Commissioner may issue guidelines setting out circumstances in which an organisation is not required to comply with subclause (2). ...

1. The Tribunal adopted the agency's submissions that it had adhered to cl 4(2).

1. The aim of HPP 4 is to ensure that the subject of an information collection is made aware of the implications for their privacy of the collection process, and of any protections that apply prior to or at the time of collection. This is to be done in an accessible way to ensure transparency in the process.

1. The Minister noted that the Privacy Commissioner had issued guidelines setting out the circumstances in which an organisation is not required to comply with HPP 4(2). They are the 'Statutory Guidelines on notifying a person when you have collected health information about them from someone else'. The submissions noted that an organisation is not required to comply with HPP 4(2) where:

(a) the organisation collected the health information from someone else because it was unreasonable or impracticable to collect directly from the person, and notifying the person would be unreasonable or impracticable in the circumstances (cl 3.1.1); and

(b) the health information was initially collected from the person to whom it relates by another organisation ('the disclosing organisation') and the organisation receiving the information has reasonable grounds to believe that the disclosing organisation has already notified the persons of the matters set out in HPP 4(1) (cl 3.1.4).

1. The submission was that it was not practicable or possible in the circumstances for the agency, as a passive collector, to comply with the requirements of HPP 4(2) and it was entitled to take the benefit of the Privacy Commissioner's guidelines. The submissions went on to address the content of the form, HQ1, and the information included in the referral letter, in line with the protocol issued by the agency.

1. We accept that these provisions cover some of the matters identified by HPP 4(1), i.e. items (a) and (c). It may not have been necessary in the circumstances to address the access right, item (b), given that all the material was copied to AF.

1. Item (d) (usual disclosures) is not addressed. In our view, this is a matter that could practically be addressed, at least in general terms, by a protocol of the kind that the agency had in place. In the present case, item (f) has, perhaps, no role to play as it relates to the situation of direct collection.

1. Item (e) could, perhaps, be more clearly addressed. The RTA referral did rely on its sick leave policy in explanation for its decision to refer AF for assessment. There should perhaps have been some reference to the precise law which enabled this to occur, and equally the law which allowed the agency to be the recipient.

1. We will not pursue these aspects of the case any further in these reasons given our primary ruling as to jurisdiction.

1. HPP 10 has as its basic rule that an organisation that holds health information must only use it for the purpose for which it was collected (called the 'primary purpose), and not use it for another purpose (called a 'secondary purpose'). HPP 10 allows use for any secondary purpose to which the individual consents, and then enumerates a large number of other permissible secondary purposes. We will not set out the provision in full here. As relevant to this case, HPP 10 provides:

10 Limits on use of health information

(1) An organisation that holds health information must not use the information for a purpose (a secondary purpose) other than the purpose (the primary purpose) for which it was collected unless:

(a) Consentthe individual to whom the information relates has consented to the use of the information for that secondary purpose, or

(b) Direct relationthe secondary purpose is directly related to the primary purpose and the individual would reasonably expect the organisation to use the information for the secondary purpose, or

Note. For example, if information is collected in order to provide a health service to the individual, the use of the information to provide a further health service to the individual is a secondary purpose directly related to the primary purpose.

1. 'Use' and 'disclosure' have usually been presented as discrete concepts in data protection law, and that distinction is drawn in this law. 'Use' is generally seen as referring to the internal use made of personal information by the collecting agency, whereas 'disclosure' is used to describe the act of supplying the information to a third party external to the agency.

1. In this instance, AF in her review application challenged the use made by the agency of the information provided to it by the RTA. The evidence is that the agency only used the information, in the sense of consulting it to make contact and respond to complaints, for preliminary steps connected with its primary purpose. The evidence is that it never got as far as conducting the assessment. (AF emphasised in her submissions on appeal that she had asked for time to respond in writing to the RTA material before presenting for assessment. The matter never reached the point where the agency set up an appointment. These statements were not disputed by the Minister. AF objected to the Tribunal's account at [50], which might be read as suggesting an interview was arranged. We simply note this point. There is no error of law identified. The misstatement had no consequence for the Tribunal's analysis.)

1. Similarly the use by the agency of the information to enable it to respond to the internal review complaint is necessarily to be implied or contemplated under the terms of both HRIPA and PPIPA (HPP 10(2)(b); PPIPA, s 25(b)).

(2) The Complaint Communications Issues

1. The complaint is that HealthQuest wrongly disclosed the fact of the complaints, and their nature, to the RTA.

1. The chain of communications making up AF's complaints is the subject of a table in the Minister's submissions to the Tribunal below. They are set out at tabs 5, 6, 8, 10 and 11 of the Minister's documents. They cover the dates 5 July, 5-6 July, 13 July, 18 July and 2 August 2007.

1. This material was treated by the Tribunal as 'personal information' as distinct from 'health information', thus attracting the operation of PPIPA rather than HRIPA. The Minister does not dispute that approach.

1. The issue was whether the agency's sharing of the complaint information contravened the limitations on disclosure of personal information, primarily set out in s 18 (Information Protection Principle 11). It provides:

18 Limits on disclosure of personal information

(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.

1. The Tribunal rejected AF's case for several reasons (at [57]-[62]). We have reviewed those reasons and are satisfied with them.

(3) Miscellaneous Issues

1. AF raised several other issues. We will deal with some of them briefly. Nothing turns on whether the board of the agency was properly constituted at the relevant times. The matter is adequately addressed by the Tribunal in its reasons. It remained an agency for the purpose of the privacy laws regardless of the legality or otherwise of the composition of its Board. Similarly Mr Boggon's status and authority has no relevance. The conduct under notice in this case is that of the agency not the RTA. There is no failure of procedural fairness on the part of the Tribunal merely because it makes findings unacceptable to a party, or on the basis of evidence perceived to be weak. Similarly the availability or otherwise of transcripts does not bear on the matter.

(4) Extension of Appeals to the Merits

1. There is a useful account of the nature of the Appeal Panel's discretion, and the caution that should surround its exercise, in O'Sullivan v Medical Council of NSW [2010] NSWADTAP 64 at [24].

1. We have not upheld any of AF's challenges to the contravention rulings. There is no reasonable basis for extending her appeal to the merits. Leave is refused.

1. In the Minister's case, we have allowed the appeal on its fundamental points and it is unnecessary to consider further the Minister's application for leave to extend to the merits.

(5) Costs Applications

1. There are costs applications from both parties.

1. The Tribunal's power in relation to the making of costs awards is conferred by s 88. The primary rule in proceedings to which s 88 is applicable (as here) is that each bears their own costs unless an order is made by way of exception having regard to the criteria set down in s 88. Section 88 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) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.

(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.

1. The Minister applied on 21 November 2011 for the costs of responding to AF's appeal. The solicitor for the Minister has given an estimate of the Minister's reasonable costs in that regard ($8,500), and is agreeable to the amount being fixed at $5,000.

1. At the close of the appeal hearing on 5 December 2011 directions were given requiring AF to file and serve any submissions in reply by 17 January 2012, subsequently extended to 27 January 2012. AF also foreshadowed an application for her costs of responding to the Minister's appeal, and her costs generally. She was directed to give notice of any such application by 19 December 2011, and to lodge any submissions by 17 January 2012. She notified an application, and lodged submissions on the extended date of 27 January 2012.

1. The directions stated that further directions would be given by telephone conference if notice was given of such an application. That has not occurred. There are no submissions in reply from the Minister, and, as explained below, they are in our view not required.

1. The usual rule governing the conduct of Appeal Panel hearings is that laid down by s 75(1) of the ADT Act: 'If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public.' Section 76 allows for an alternative course:

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.

1. AF in her submissions applied for an oral hearing to be held in relation to each of the costs applications. She also applied for an oral hearing on the issue of the exercise of the s 76 discretion.

1. In the ordinary courts, costs issues are commonly disposed of by a brief hearing after judgment is delivered, with the starting point being that costs follow the event. The situation in the Tribunal is different. The starting point is that costs are borne by the parties (ADT Act s 88(1)) unless an order by way of exception is made, having regard to the considerations set down in s 88(1A). As an application for costs is therefore relatively uncommon, costs applications made at hearing or notified after the delivery of reasons for decision are customarily the subject of special directions, and are dealt with 'on the papers'.

1. Costs applications will, normally, be readily capable of determination by reference to written submissions. There is an efficiency interest in minimising oral hearings, especially where they are sought in relation to matters ancillary to the main proceedings. We are satisfied that these applications are ones that can be adequately determined in the absence of the parties.

(a) Minister's Application for Costs of Responding to AF's Appeal (Appeal no. 119025)

1. It will be seen from our reasons above that we regarded AF's appeal as untenable in relation to the points relating to HPP 1, 2 and 10, and of little in respect of HPP 4. The appeal as it related to the disclosure of the complaints communications, requiring consideration of IPP 11 (s 18 of PPIPA) was also untenable in our view.

1. The primary costs rule may be varied by the Appeal Panel if it is fair to do so having regard to the considerations set out in sub-s (1A). One of these as the Minister's submissions note is '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' (factor (c)).

1. The Minister's submissions also refer to other factors that were seen as relevant (see factor (e)): her appeal was from a decision where she was largely unsuccessful; there was an offer of settlement made by the Minister on 18 November 2011 (rejected by AF on 30 November 2011); lack of clarity and no correlation between appeal grounds and submissions; failure to respond to arguments already made; raising matters beyond the scope of the appeal; warnings (given by the solicitor for the Minister) as to the need to identify errors of law.

1. The submissions noted that AF was an unrepresented litigant. The submissions noted the recognition by the High Court in Cachia v Hanes (1994) 179 CLR 403 at 415 of the drain that some unrepresented litigants can place on public resources, and the resources of the opposite party, by the way they conduct proceedings. The submissions point to several examples of conduct of this kind in this case on the part of AF.

1. In our view, the record of the proceedings below bears out the Minister's submission.

1. The conduct under notice in this case fell in a narrow compass - (1) the agency's compliance with privacy principles in respect of the referral and dossier issues; and (2) the agency's compliance with the privacy principles in responding to AF's complaints. The events belonged to a relatively short period of time (June to August 2007).

1. In our view, AF has conducted the proceedings in a manner that has sought to proliferate the issues well beyond those confines. She has raised numerous peripheral issues of no merit, a pattern seen repeated in her costs submissions. She refers, for example, to - whether Mr Boggon of the RTA was an officer properly authorised to make the referral; whether HealthQuest was at the relevant time a properly constituted organisation; the need or otherwise for HealthQuest to remain a party to these proceedings; the propriety of the conduct of the proceedings by the Crown Solicitor's Office; the adequacy or otherwise of notices of representation; the record keeping and stamping practices of the Tribunal registry. She also issued numerous summonses most of which were disallowed. The length of the hearing at first instance (nine days) was, in our view, entirely disproportionate to the matters in issue, and caused we consider having examined the material filed below, in large measure, by the way AF chose to conduct her case. The Minister's submissions refer to the scope and scale of the written submissions lodged by AF at first instance. All of this conduct has, we are satisfied, exacerbated the task unreasonably for the agency initially and now the Minister in responding to her case. These features are repeated in the appeal filings.

1. In our view the costs order sought should be allowed, in the modest sum sought.

(b) AF's Applications for Costs (Appeals nos 119025 and 119029)

1. In appeal no. 119025, AF has filed an application for costs, and has sought various other orders including damages in respect of the contravention finding made in her favour by the Tribunal below. That finding has been set aside. In our view, given her lack of success in the appeal, and the absence of any conduct on the part of the Minister that might warrant an adverse costs order, there should be no order for costs in favour of AF in respect of this appeal.

1. She has also made an application for costs in relation to the Minister's appeal (no. 119029). Her submission in support repeats what she said in relation to her appeal. For the same reasons we consider that there should be no order for costs in her favour.

1. The Appeal Panel file shows that these applications and submissions were copied by the Registry to the Minister on 30 January 2012. The Registry has confirmed that they were received. There has been no reply, perhaps due to our failure to make follow up directions. We do not require a reply.

Orders

Appeal No 119025 (AF's appeal)

1. Dismissed.

2. Appellant's application for costs dismissed.

Appeal No 119029 (Minister's appeal)

1. Appeal allowed.

2. Application for review dismissed for want of jurisdiction in respect of the referral and dossier issues.

3. Application for review dismissed in relation to the complaint communications issues.

4. Respondent to pay the Appellant's costs, fixed at $5,000.

5. Respondent's application for costs dismissed.

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Decision last updated: 14 May 2012