DSC v South Eastern Sydney Local Health District (No 2) - [2019] NSWCATAD 216

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DSC v South Eastern Sydney Local Health District (No 2) [2019] NSWCATAD 216
Hearing dates: On the papers
Date of orders: 22 October 2019
Decision date: 22 October 2019
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member
Decision:
(1) A hearing on costs is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013.
(2) The application by the applicant (DSC) for an order that the respondent SESLHD pays its costs of the proceedings is dismissed, and each party is to pay its own costs.

Catchwords: COSTS – application for administrative review withdrawn- whether special circumstances for an award of costs
Legislation Cited: Civil and Administrative Tribunal Act 2013
Privacy and Personal Information Protection Act 1998
Cases Cited: Cripps v G & M Mawson [2006] NSWCA 84
DSC v South Eastern Sydney Local Health District [2019] NSWCATAD 111
Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120
Texts Cited: Nil
Category: Costs
Parties: DSC (Applicant)
South Eastern Sydney Local Health District (Respondent)
Representation: Solicitors:
Applicant (Self Represented)
L Chapman (South Eastern Sydney Local Health District) (Respondent)

File Number(s): 2018/00377670
Publication restriction: s-64 Civil and Administrative Tribunal Act 2013 in respect of the identity of the applicant

REASONS FOR DECISION

On 7 December 2018 DSC lodged an application for administrative review of a decision pursuant to s 55 (1) of the Privacy and Personal Information Protection Act 1998 (the PPIP Act).
On 27 August 2019 the parties agreed on consent orders disposing of the privacy grievance. As a result of that agreement the applicant withdrew his application for administrative review in writing, and the Tribunal made orders giving effect to the consent agreement and then dismissing the proceedings in accordance with s 55 (1) (a) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act).
The applicant by letter dated 3 September 2019 made an application for costs and disbursements.
The Tribunal made orders on 24 September 2019 in respect of the costs application namely that the parties file and serve submissions on the application, including whether the matter can be determined without a hearing, and that the applicant address what specific costs have been incurred and the issue of ‘special circumstances’ in accordance with s 60 of the NCAT Act.
As submissions have now been received from both parties the application can be considered.

Background

The applicant is an appointed Attorney under an Enduring Power of Attorney for his mother who has been diagnosed with a cognitive impairment. The applicant was seeking to clarify matters concerning his mother’s health records and made a request for Internal Review under Part 5 of the PPIP Act.
The specific issues with the health records of the applicant’s mother concerned the accuracy of two documents, in that there was information that in the applicant’s view was superfluous, inaccurate and irrelevant in so far as there is a requirement for personal information (including health information) to be accurate.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DSC v South Eastern Sydney Local Health District (No 2)

Details

AGLC: DSC v South Eastern Sydney Local Health District (No 2) [2019] NSWCATAD 216
Case: [2019] NSWCATAD 216
Decision Date: 22 October 2019

CaseChat Overview and Summary

The applicant, DSC, made an application for administrative review which was subsequently withdrawn. DSC then applied for the respondent, South Eastern Sydney Local Health District (SESLHD), to pay its costs of the proceedings. The application was heard by the Civil and Administrative Tribunal (CAT). The primary legal issue was whether there were special circumstances that warranted an award of costs to the applicant despite the withdrawal of the application for administrative review.

The CAT considered that while it is generally the case that the unsuccessful party in administrative review proceedings may be ordered to pay the successful party’s costs, there were no special circumstances in this case that justified an exception to this rule. The tribunal emphasised that the applicant had voluntarily withdrawn the application and, as such, bore the consequences of that decision. The tribunal further noted that the respondent had incurred costs in responding to the withdrawn application and that it would be unjust to require the respondent to bear those costs. The CAT concluded that each party should bear its own costs.

In accordance with the findings, the tribunal dismissed the applicant’s costs application and ordered that each party was to pay its own costs. The tribunal dispensed with the need for a hearing on costs under section 50(2) of the Civil and Administrative Tribunal Act 2013.

Orders

Orders of the court

(1) A hearing on costs is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013.

(2) The application by the applicant (DSC) for an order that the respondent SESLHD pays its costs of the proceedings is dismissed, and each party is to pay its own costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	DSC v South Eastern Sydney Local Health District (No 2) [2019] NSWCATAD 216
Hearing dates:	On the papers
Date of orders:	22 October 2019
Decision date:	22 October 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member
Decision:	(1) A hearing on costs is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013. (2) The application by the applicant (DSC) for an order that the respondent SESLHD pays its costs of the proceedings is dismissed, and each party is to pay its own costs.
Catchwords:	COSTS – application for administrative review withdrawn- whether special circumstances for an award of costs
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Privacy and Personal Information Protection Act 1998
Cases Cited:	Cripps v G & M Mawson [2006] NSWCA 84 DSC v South Eastern Sydney Local Health District [2019] NSWCATAD 111 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120
Texts Cited:	Nil
Category:	Costs
Parties:	DSC (Applicant) South Eastern Sydney Local Health District (Respondent)
Representation:	Solicitors: Applicant (Self Represented) L Chapman (South Eastern Sydney Local Health District) (Respondent)
File Number(s):	2018/00377670
Publication restriction:	s-64 Civil and Administrative Tribunal Act 2013 in respect of the identity of the applicant