ENY v Nepean Blue Mountains Local Health District

[2024] NSWCATAD 157

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

ENY v Nepean Blue Mountains Local Health District [2024] NSWCATAD 157

Hearing dates:

On the papers

Date of orders:

07 June 2024

Decision date:

07 June 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Ledda, Senior Member

Decision:

(1) The parties having been given the opportunity to make submissions as to whether the Tribunal should dispense with a hearing, and being satisfied that the matter can be adequately determined in the absence of the parties, the Tribunal dispenses with a hearing of the applicant’s application pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

(2) The applicant’s application is dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW).

(3)   The respondent is, on or before 4pm on 21 June 2024, to give the applicant and the Tribunal any submissions and documents it intends to rely on in relation to any application for costs it wishes to make.

(4)   The applicant is, on or before 4pm on 5 July 2024, to give the respondent and the Tribunal any submissions and documents the applicant intends to rely on in response to an application for costs (if any) made by the respondent.

(5) Pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW), the parties are to include in their written submissions their views about whether they consider that a hearing in relation to the application for costs can be dispensed with.

Catchwords:

ADMINISTRATIVE LAW — privacy — administrative review application made under Privacy and Personal Information Protection Act 1998 (NSW) for collateral purposes — role of NSW Civil and Administrative Tribunal — application of Briginshaw principles to serious misconduct allegations

Legislation Cited:

Administrative Arrangements (Minns Ministry—Administration of Acts) Order 2023 (NSW)

Administrative Arrangements (Public Service agencies and Ministers) Order 2023 (NSW)

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Evidence Act 1995 (NSW)

Freedom of Information Act 1989 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Government Sector Audit Act 1983

Government Sector Employment Act 2013 (NSW)

Government Sector Finance Act 2018 (NSW)

Health Records and Information Privacy Act 2002 (NSW)

Health Records and Information Privacy Regulation 2022 (NSW)

Health Services Act 1997 (NSW)

NSW Self Insurance Corporation Act 2004 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

State Insurance and Care Governance Act 2015 (NSW)

State Records Act 1998 (NSW)

Cases Cited:

AIL v Department of Premier and Cabinet (NSW) [2012] NSWADT 191

Attorney-General v Wentworth (1988) 14 NSWLR 481

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41

BYW v Commissioner of Police, NSW Police Force [2015] NSWCATAP 270

Collins v Department of Fair Trading [2019] NSWCATAP 199

Crewdson v Central Sydney Area Health Service [2002] NSWCA 345

CYL v YZA [2016] NSWCATAD 314

CYL v YZA [2017] NSWCATAP 105

Department of Education and Training v GA (No 3) [2004] NSWADTAP 50

DQN v University of Sydney [2019] NSWCATAD 266

DVH v South Eastern Sydney Local Health District [2021] NSWCATAD 212

EJE v Nepean Blue Mountains Local Area Health District [2021] NSWCATAD 289

ENY v Nepean Blue Mountains Local Health District [2021] NSWCATAD 382

GA v The University of Sydney (GD) [2010] NSWADTAP 31

GBV v Western Sydney Local Health District [2024] NSWCATAD 110

GR v Department of Housing [2004] NSWADTAP 26

KO v Commissioner of Police, NSW Police Force (GD) [2005] NSWADTAP 56

KP v Narrandera Shire Council (GD) [2011] NSWADTAP 15

Meacham v Commissioner of Police [2020] NSWCATAP 107

Minister for Education and Early Childhood Learning v Zonnevylle (2020) 103 NSWLR 91; [2020] NSWCA 232

Miriani v Transport for NSW [2021] NSWCATAD 16

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66

Nepean Blue Mountains Local Health District v ENY [2022] NSWCATAP 356

OD v Department of Education and Training (GD) [2005] NSWADTAP 74

Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55

Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34

Zonnevylle v Secretary, Department of Education [2021] NSWCATAD 361

Category:

Principal judgment

Parties:

ENY (Applicant)
Nepean Blue Mountains Local Health District (Respondent)

Representation:

Applicant (self-represented)
Crown Solicitor (Respondent)

File Number(s):

2024/00008850

Publication restriction:

The publication or broadcast of the name of the applicant is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

REASONS FOR DECISION

Introduction

1. The applicant has made an application (the applicant’s current application) under s 55 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) for an administrative review of certain conduct of the Nepean Blue Mountains Local Health District (the respondent) involving information about the applicant and her deceased father. The applicant’s name has been anonymised because of a non-publication order previously made by the Tribunal to protect the applicant’s privacy.

2. The applicant alleges that the respondent has contravened the information privacy principles (the IPPs) set out in Pt 2, Div 1 of the PPIP Act and the Health Privacy Principles (the HPPs) set out Sch 1 to the Health Records and Information Privacy Act 2002 (NSW) (HRIP Act).

3. The applicant’s current application focuses principally on information about the applicant’s father and the applicant contained in a form submitted on behalf of the respondent to Insurance and Care NSW and in a letter sent to the applicant by the Secretary of NSW Health about investigations concerning her father’s death. The applicant alleges the information in those documents is false and was used or disclosed in contravention of the IPPs and HPPs.

4. After considering the extensive submissions and other material lodged by the parties, I have decided that the applicant’s current application must be dismissed. I have come to this decision because: (1) the application has been made predominantly for collateral purposes; and (2) even if I am wrong about this, the application cannot succeed on its merits. These are my reasons for coming to this decision.

References to submissions in these reasons

5. For ease of reference, the following submissions are referred to in these reasons using the specified abbreviations:

1. Applicant’s submission dated 22 March 2024 (AS 1).

2. Applicant’s submission dated 6 May 2024 (AS 2).

3. Applicant’s submission dated 17 May 2024 (AS 3).

4. Applicant’s final submission dated 23 May 2024 (AS 4).

5. Respondent’s submissions dated 23 April 2024 (RS 1).

6. Respondent’s closing submissions dated 20 May 2024 (RS 2).

Dispensing with a hearing

6. On 13 May 2024, the Tribunal vacated the hearing date of 15 May 2024 at the request of the parties. The parties proposed instead that the Tribunal make an order under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) dispensing with a hearing.

7. The Tribunal made orders on the same day requiring the applicant and respondent to give the Tribunal any further submissions by specified dates. These orders were made on the basis that the Tribunal would consider the proposal to dispense with a hearing after receiving any further submissions. The parties both lodged further submissions in accordance with the orders: see AS 3 and AS 4 and RS 2.

8. Section 50(1) of the NCAT Act requires the Tribunal to hold a hearing for proceedings except in certain circumstances. One circumstance is if the Tribunal makes an order under s 50 dispensing with a hearing.

9. The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal: NCAT Act, s 50(2). The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first afforded the parties an opportunity to make submissions about the proposed order and taken those submissions into account: NCAT Act, s 50(3). If a hearing is not required, the Tribunal may determine the proceedings based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal: NCAT Act, s 50(4).

10. The applicant submits that although the case is very involved, the applicant and the respondent have nevertheless both agreed that it be heard “on the papers” if that is appropriate and is approved by the Tribunal: AS 3 at p 1.

11. The respondent submits that there are two reasons for dispensing with a hearing: RS 2 at [19]–[21]. First, the parties have made ample written submissions so that it unlikely a hearing will cover new ground. Second, the evidence is largely documentary. The applicant does not rely on any witness statements or similar evidence. The respondent relies on only one written witness statement of an officer of the respondent (the respondent’s officer) made on 18 April 2024 (the witness statement). The applicant indicated in her submissions that she did not propose to call the respondent’s officer as a witness: AS 3 at p 2.

12. Having considered the written submissions and other documents or material lodged with or provided to the Tribunal by the parties and noting that the parties have agreed that the Tribunal can dispense with a hearing, I am satisfied that the issues for determination in the applicant’s current application can be adequately determined in the absence of the parties.

13. I agree that the evidence is largely documentary evidence and I have had the benefit of extensive submissions from both parties concerning this evidence. Although the applicant challenges the accuracy of certain aspects of the witness statement, I do not think I need to address those aspects to determine the applicant’s current application.

14. Accordingly, I am satisfied it is appropriate to make an order dispensing with a hearing.

Background

15. The applicant’s father died in a hospital of the respondent in the late 2000s. The respondent’s records about the death state that the cause of death was a stroke. The applicant has contended for some years that her father was killed by staff at the hospital rather than by a stroke. The applicant has also contended that the respondent has been covering up what really happened and that its records state something that the respondent knows to be false. The respondent denies this.

16. The applicant has approached various persons and agencies over the years to have her father’s death investigated. In 2021 the applicant also made an application to the Tribunal under s 55 of the PPIP Act for an administrative review of the respondent’s refusal to amend its records to state what the applicant contended was the correct cause of her father’s death (the first NCAT case).

17. It is necessary to set out in some detail what was submitted and decided in the first NCAT case because the respondent submits that the applicant’s current application is an impermissible attempt to re-litigate a matter that the Tribunal has already decided: RS 1 at [88].

18. The applicant submitted in the first NCAT case that the respondent had contravened the HPPs by refusing to make the requested amendment. In particular, the applicant submitted that the respondent had contravened cl 8 of Schedule 1 to the HRIP Act (conventionally referred to as HPP 8). HPP 8 provides that an organisation (which includes the respondent) that holds health information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the health information is accurate and relevant, up to date, complete and not misleading.

19. There was an issue in the first NCAT case about whether the applicant had standing to ask for the amendment. This was because HPP 8 provides that an amendment can only be made “at the request of the individual to whom the information relates”. As the applicant’s father had died, the respondent submitted that the applicant could not seek an amendment on her father’s behalf.

20. The Tribunal originally held the applicant could apply for an amendment in the applicant’s capacity as the executor of her father’s estate: ENY v Nepean Blue Mountains Local Health District [2021] NSWCATAD 38 (ENY No 1).

21. The Tribunal considered that s 7 of the HRIP Act permitted such a course because it enables an authorised representative to do an act on behalf of an individual who is incapable of understanding the general nature or effect of the act or communicating intentions with respect to it “by reason of age, injury, illness, physical or mental impairment”. Section 8(1)(d) of the HRIP Act defines an authorised representative of an individual to include, in addition to an attorney, guardian or person with parental responsibility, a person who is otherwise empowered under law to exercise any functions as an agent of or in the best interests of the individual. The Tribunal held that the applicant was an authorised representative of the applicant’s father within the meaning of s 8(1)(d) of the HRIP Act and that s 7 extended to situations where a person is relevantly incapable because of death.

22. An Appeal Panel of the Tribunal set aside the Tribunal’s decision: Nepean Blue Mountains Local Health District v ENY [2022] NSWCATAP 356 (ENY No 2). The Appeal Panel found (at [117]−[118]) that as the purpose of both the PIPP Act and HRIP Act is to protect the personal and health information and privacy of individuals, the legitimate interests of others in accessing such information about deceased person under those Acts is limited. The Panel held (at [126]−[142]) that s 7 of the PPIP Act is expressly confined to incapacity arising from five specified criteria and it is not appropriate as a matter of statutory interpretation to read in death as an additional criterion when it is not mentioned.

Relevant legislation and legal principles

23. The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under the NCAT Act or any other legislation: NCAT Act, 28 (1). Its jurisdiction includes administrative review jurisdiction: NCAT Act, s 28(2). Administrative review jurisdiction is conferred on the Tribunal if legislation enables a person to apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act) of a decision of a specified decision-maker: NCAT Act, s 30 (1); ADR Act, s 9. A decision for this purpose extends beyond the ordinary meaning of the term (for example, a decision to refuse to grant a licence) to include doing or refusing to do any other act or thing: ADR Act, s 6(1)(g); see also NCAT Act, s 5(1)(g).

The Tribunal’s privacy jurisdiction

24. Section 55(1) of the PPIP Act provides that a person may apply to the Tribunal for an administrative review under the ADR Act of conduct of a public sector agency that was the subject of an internal review application made by the person under s 53 if the person is not satisfied with the findings of the internal review or the action taken by the agency in relation to the internal review application. Section 53 of the PPIP Act, read with s 52, enables an “aggrieved person” to apply to a public sector agency for an internal review of conduct of the agency involving the contravention, or alleged contravention, of IPPs applicable to the agency.

25. The IPPs regulate how public sector agencies must deal with personal information about individuals. Section 4(1) of the PPIP Act defines personal information as follows:

In this Act, 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.

26. Section 4(3)(a) excludes from the definition information about an individual who has been dead for more than 30 years. Accordingly, information about an individual who has been dead for 30 years or less is included.

27. Significantly, s 4A of the PPIP Act provides that, except as provided by the PPIP Act or HRIP Act, the definition of “personal information” in s 4 of the PPIP Act does not include health information within the meaning of the HRIP Act. This results in the HPPs rather than the IPPs generally applying to how a public sector agency deals with health information.

28. Section 6 of the HRIP Act defines “health information” as follows:

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, or

(c) other personal information about an individual collected in connection with the donation, or intended donation, of an individual’s body parts, organs or body substances, or

(d) other personal information that is genetic information about an individual arising from a health service provided to the individual in a form that is or could be predictive of the health (at any time) of the individual or of a genetic relative of the individual, or

(e) healthcare identifiers,

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.

29. Section 5 of the HRIP Act defines “personal information” in similar terms to s 4 of the PPIP Act, including in relation to information about deceased individuals.

30. Even though the PPIP Act does not generally apply to personal information that is health information, s 21(1) of the HRIP Act applies the provisions of Pt 5 (Review of certain conduct) of the PPIP Act to contraventions, or alleged contraventions of the HPPs applicable to a public sector agency. For this purpose, s 21(2) provides that a reference in Pt 5 of the PPIP Act to personal information is taken to include health information and a reference to an IPP is taken to include a reference to an HPP. Part 5 includes ss 53 and 55 of the PPIP Act mentioned above, which operate together to confer administrative review jurisdiction on the Tribunal.

31. The respondent is a GSF agency within the meaning of the Government Sector Finance Act 2018 (NSW): s 2.4(1)(b) (read with s 2.3(1)(a)). Consequently, it is an auditable entity within the meaning of the Government Sector Audit Act 1983 (NSW), s 4(1) (definition of “auditable entity”). An auditable entity is in turn included in the definition of “public sector agency” for both the PPIP Act and HRIP Act: PPIP Act, s 3(1) (definition of “public sector agency”); HRIP Act, s 4(1) (definition of “public sector agency”). It follows that the respondent is a public sector agency for the purposes of both these Acts: see also Health Records and Information Privacy Regulation 2022 (NSW), s 10.

32. The provisions of Pt 5 of the PPIP Act therefore apply to the respondent (whether directly or because of s 21 of the HRIP Act) if:

1. the respondent contravenes, or allegedly contravenes, the IPPs applicable to the respondent concerning dealings with personal information that is not health information, or

2. the respondent contravenes, or allegedly contravenes, the HPPs applicable to the respondent concerning dealings with health information.

Role of Tribunal when exercising its privacy jurisdiction

33. In determining an administrative review application, the role of the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law: ADR Act, s 63(1). For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the decision-maker: ADR Act, s 63(2).

34. Section 63(3) of the ADR Act provides that the Tribunal may determine an administrative review application by affirming or varying the decision under review, by setting the decision aside and making a decision in substitution or by setting the decision aside and remitting it to the administrator for reconsideration. In addition, s 55(2) of the PPIP Act provides that on reviewing the conduct of the public sector agency, the Tribunal may decide not to take any action on the matter, or it may make orders for compensation or to stop or require certain conduct by the public sector agency. However, s 55(3) provides that nothing in s 55 limits any other powers that the Tribunal has under Div 3 of Pt 3 of Ch 3 of the ADR Act. One of the provisions contained in Div 3 is s 63 of the ADR Act.

35. The Tribunal is not bound by the rules of evidence when it conducts an administrative review: NCAT Act, s 38(2). However, as the Appeal Panel noted in Meacham v Commissioner of Police [2020] NSWCATAP 107 (Meacham) at [54] and [81]−[83]:

“54 Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on ‘logically probative material’, and not on ‘mere suspicion or speculation’, as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 (‘Pochi”) at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 (‘Sullivan’) at [5]−[8], [15]−[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it.

……

81 Section 140 of the Evidence Act [1995 (NSW)], which sets out the standard of proof in civil cases to which that Act applies, is for Tribunal guidance only, and ordinarily a party seeking administrative review of government action is not required to establish its case on the balance of probabilities: Bronze Wing Ammunition v SafeWork NSW (No 2) [2016] NSWSC 988 at [76]-[77]; Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127].

82 Rather, in an administrative review case, the parties put on such evidence as they wish and, in a matter of this kind involving the exercise of a discretion, it is a matter for the Tribunal to properly consider all relevant materials and ignore all irrelevant matters in exercising the power of the relevant administrator in review proceedings. This is especially the case where a decision has been taken on a discretionary basis in light of the public interest.

83 Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on ‘logically probative material’: Pochi at 62, 68; Sullivan at [5]−[8], [15]−[17].”

36. The Tribunal is required to consider the matter afresh, with neither party bearing an onus of proof except for a practical onus on the party who asserts a fact to prove its existence: Collins v Department of Fair Trading [2019] NSWCATAP 199 at [47]. If the Tribunal is left in a state of uncertainty about a fact in issue, the fact should be decided against the applicant: KP v Narrandera Shire Council (GD) [2011] NSWADTAP 15 at [26] and [31]; BYW v Commissioner of Police, NSW Police Force [2015] NSWCATAP 270 at [12].

37. Section 55(1) of the PPIP Act limits the scope of the administrative review that the Tribunal may undertake “to the conduct that was the subject of the [internal review] application under section 53”. It is not the Tribunal’s role to review the internal review decision: GR v Department of Housing [2004] NSWADTAP 26 at [35]. Consequently, the Tribunal does not have jurisdiction to review conduct of a public sector agency if the conduct was not the subject of the internal review application made to the agency: Department of Education and Training v GA (No 3) [2004] NSWADTAP 50 at [7] (GA (No 3)).

38. The Tribunal must work out its jurisdiction by looking objectively and reasonably at the scope of the internal review application: KO v Commissioner of Police, NSW Police Force (GD) [2005] NSWADTAP 56 at [13]−[17]. An applicant cannot widen the scope of the application after the public sector agency has dealt with it on an internal review: OD v Department of Education and Training (GD) [2005] NSWADTAP 74 at [13]−[14]

The applicant’s current application

39. The applicant’s current application was lodged with the Tribunal on 8 January 2024. The applicant alleges the respondent contravened the IPPs and HPPs that required the respondent: (1) not to use information without taking reasonable care to ensure that information is relevant, accurate, up to date, complete and not misleading; and (2) not to use or disclosure information except in specified circumstances.

40. Before the applicant lodged her application with the Tribunal, she applied for an internal review of the conduct under s 53 of the PPIP Act. Her original internal review application dated 9 October 2023 identified four issues. She applied for an internal review concerning a fifth issue on 18 October 2023. The five issues were:

1. Issue 1: The false and improper use and disclosure by the respondent and its officers of the applicant’s personal information and her father’s health information in a form headed “Health Liability Claim/Notification” submitted on behalf of the respondent on 16 June 2021 to Insurance and Care NSW (also know as icare) advising icare of potential litigation by the applicant about her father’s death (the icare form). The applicant alleged this was done fraudulently to obtain funding.

2. Issue 2: The improper conduct of the respondent and its officers in relation to the first NCAT case.

3. Issue 3: The false claims made by the respondent and its officers that the applicant had harassed the respondent’s staff.

4. Issue 4: The false information contained in correspondence sent to the applicant by the Secretary of NSW Health in a letter dated 1 March 2023 (the NSW Health Secretary’s letter) in response to correspondence from the applicant sent to both the then Premier and then Minister for Health.

5. Issue 5: The improper conduct of the respondent and its officers in relation to decisions made under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).

41. For completeness, it should be noted that the applicant had been provided with a copy of the icare form following an earlier application made under the GIPA Act.

42. The applicant was given a notice of internal review addressing these five issues. The review officer found that, subject to one exception, the respondent did not contravene the IPPs or HPPs. The exception concerned an incorrect reference to the name of the applicant’s father inserted in the icare form. The review officer considered that this contravened the IPPs because its accuracy was not checked before it was used.

43. The review officer recommended that an apology be made to the applicant for any distress that the matter caused her and that she should be assured the respondent took its privacy obligations seriously. The officer also recommended that a request for a formal correction of the information relating to the applicant’s father’s name in the icare form be made to the external bodies concerned.

44. In her submissions (AS 1 at pp 32−32b) the applicant sought the following remedies from the Tribunal:

1. An order requiring the respondent to disclose all documentation in relation to the issues at hand.

2. An order requiring the respondent to repay all money acquired or expended via the false icare form.

3. An order requiring the respondent to notify the Minister for Health that the letter signed by Secretary of NSW Health contained false information provided by the respondent.

4. That the Tribunal rule on breaches of the HPPs and IPPs in relation to in relation to the use, disclosure, accuracy, and false opinions drawn.

5. An order preventing the amendment of the icare form until all of the issues surrounding it have been resolved.

6. An order requiring the respondent to “elaborate” on the input from a lawyer of the Ministry of Heath, specify whose idea it was to make the false insurance claim in the icare form and name the lawyer involved.

7. An order requiring the respondent to send notifications to the Ministry of Heath about the false conclusions which have been drawn about the applicant in the letter of the Secretary of NSW Health, based on false claims of extensive investigation, accuracy and consistency, and the involvement of the Tribunal in the first NCAT case.

8. An order requiring the respondent to explain why it went against the tenets of the NSW Health Privacy Manual in the first NCAT case.

Relevant IPPs and HPPs

45. In her submissions, the applicant relies on three HPPs and their corresponding IPPs: AS 1 at p 4.

Principles concerning accuracy of information (HPP 9 and IPP 9)

46. Clause 9 of Sch 1 to the HRIP Act sets out what is conventionally referred to as HPP 9. It provides as follows:

9 Accuracy

An organisation that holds health information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.

47. Section 4(1) of the HRIP Act defines “organisation” to include a public sector agency. As noted above, the respondent is a public sector agency.

48. Section 16 of the PPIP Act, which is conventionally referred to as IPP 9, is in almost identical terms to HPP 9. It is, however, limited to public sector agencies and personal information (which, as we have seen, is defined to exclude health information). Again, the respondent is a public sector agency to which it applies. Pt 2, Div 3 sets out exemptions to the application of IPP 9.

Principles concerning use of information (HPP 10 and IPP 10)

49. Clause 10 of Sch 1 to the HRIP Act sets out what is conventionally referred to as HPP 10. It provides that 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 the use for the secondary purpose meets one of the listed criteria or occurs in one of the listed circumstances. Provision is also made for when the principle does not apply.

50. Section 17 of the PPIP Act, which is conventionally referred to as IPP 10, sets out a comparable principle to HPP 10. It provides that public sector agency that holds personal information must not use the information for a purpose other than that for which it was collected unless:

1. the individual to whom the information relates has consented to the use of the information for that other purpose, or

2. the other purpose for which the information is used is directly related to the purpose for which the information was collected, or

3. the use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual to whom the information relates or of another person.

51. Pt 2, Div 3 sets out exemptions to the application of IPP 10.

Principles concerning disclosure of information (HPP 11 and IPP 11)

52. Clause 11 of Sch 1 to the HRIP Act sets out what is conventionally referred to as HPP 11. It provides that an organisation that holds health information must not disclose the information for a purpose (a secondary purpose) other than the purpose (the primary purpose) for which it was collected unless the use for the secondary purpose meets one of the listed criteria or occurs in one of the listed circumstances. Provision is also made for when the principle does not apply.

53. Section 18 of the PPIP Act, which is conventionally referred to as IPP 11, sets out a comparable principle to HPP 11. It provides that public sector agency that holds personal information must not disclose the information for a purpose other than that for which it was collected unless:

1. 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

2. the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with s 10 of the PPIP Act, that information of that kind is usually disclosed to that other person or body, or

3. 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.

54. IPP 11 also provides that if personal information is disclosed in accordance with the provision above 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. Pt 2, Div 3 sets out exemptions to the application of IPP 11.

55. Section 10 of the PPIP Act requires a public sector agency to take reasonable steps to make an individual aware of certain matters when collecting personal information from the individual.

Principles considered in the internal review

56. The internal review limited itself to a consideration of whether HPP 9, HPP 11, IPP 9 or IPP 11 had been contravened. The review did not consider whether HPP 10 or IPP 10 had been contravened.

57. This may be explained by the applicant’s internal review application alleged the respondent had used and disclosed information in contravention of the HPPs and IPPs without identifying particular principles. In those circumstances, “an agency must address any contravention … that is reasonably open on a reading of the entire application for review”: GA (No 3) at [14]. However, it is not the function of the Tribunal “to sift through vast amounts of material provided by the [a]pplicant to determine whether a breach can be identified … [or] to decipher what conduct could possibly be inferred or which possible breaches the [a]pplicant is alleging”: DVH v South Eastern Sydney Local Health District [2021] NSWCATAD 212 at [20].

58. That said, it seems to me that it would have been reasonably open on a reading of the internal review application also to consider whether HPP 10 and IPP 10 were contravened. I note that HPP 10 and IPP 10 are in essentially the same terms as HPP 11 and IPP 11 respectively except that the former principles concern use of information while the latter concern disclosure of information.

Role of the Tribunal concerning applicant’s serious allegations

59. The applicant has made some very serious allegations as part of her current application. She alleges that the respondent, its officers and insurance agent have participated in making a fraudulent insurance claim using the icare form, possibly with the assistance of a NSW Health lawyer: AS 1 at pp 4−10 and 31−32. She alleges that her father was killed unlawfully by the respondent’s staff: AS 1 at pp 13−16; AS 2 at p 2. She alleges the respondent has engaged in a cover up: Section 58 documents, Internal review application, p 7. She alleges the Secretary’s letter made false statements based on false information provided by the respondent: AS 1 at p 31. She alleges that the Tribunal was misled in the first NCAT case: AS 1 at pp 25−26.

60. The respondent denies these allegations: RS 2 at [23].

61. The allegations made by the applicant, if true, may involve criminal offences and serious misconduct by public officials and their lawyers. It is not the role of the Tribunal to investigate such conduct. NSW has special agencies to investigate this kind of conduct, including the NSW Police, the State Coroner, the Independent Commission Against Corruption, the Ombudsman and the Health Care Complaints Commission. The Tribunal’s role is limited to deciding, based on the scope of the applicant’s internal review application, whether the conduct that the applicant complains about contravened the HPPs or IPPs.

62. Also, the seriousness the allegations requires caution in assessing material said to be evidence of the allegations. If the allegations had been made in civil proceedings in a court, the principles stated by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361−2; [1938] HCA 34 (the Briginshaw principles) (as supplemented by s 140(2) of the Evidence Act 1995 (NSW)) would prevent the court from being reasonably satisfied that the conduct occurred based on “inexact proofs, indefinite testimony, or indirect inferences caution”. Findings of fact about the conduct would require cogent evidence and could not be made lightly: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171; [1992] HCA 66 (Mason CJ, Brennan, Deane and Gaudron JJ).

63. The Briginshaw principles (as supplemented by s 140(2) of the Evidence Act 1995 (NSW)) do not directly apply to the Tribunal in proceedings where it is not required to apply the rules of evidence: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 (Bronze Wing) at [127] (Leeming JA); Meacham at [84]. However, this does not mean that they cannot be applied by analogy in the Tribunal in appropriate cases to guide its deliberations: Bronze Wing at [127]; Meacham at [84].

64. Using the analogy of the Briginshaw principles, it seems to me appropriate to approach the applicant’s serious allegations of fraud, unlawful killing and official misconduct having regard to the caution expressed in those principles. This involves not making findings lightly based on “inexact proofs, indefinite testimony, or indirect inferences”. Moreover, such an approach sits comfortably with the obligation of the Tribunal to base its findings of fact on “logically probative material” and not on “mere suspicion or speculation”. It also sits comfortably with the Tribunal’s obligation to decide an issue of fact against the applicant if there is uncertainty about it.

65. Taking this approach, I could not be reasonably satisfied based on the material before me that the allegations were established. The applicant seems to suggest that the burden of disproving her allegations rests with the respondent. Also, she asks the Tribunal to infer that the alleged conduct occurred because the respondent has not denied it (which is incorrect).

66. This is not to say that the applicant has a legal burden to prove her allegations. Neither party has a legal burden, although in a practical sense the applicant may have an evidential burden to provide some evidence to support the allegations: Meacham at [83]. Rather, there must be cogent probative material (whether provided by the applicant or the respondent) to support the findings of fact. The material before me is insufficiently probative.

Dismissal of application because it has been brought for collateral purposes

67. The respondent submits that the applicant’s current application should be dismissed under s 55(1)(b) of the NCAT as an abuse of process because it has been improperly brought for the collateral purpose of reviewing the clinical care provided to the applicant's father: RS 1 at [33]. If this submission is well founded, then the Tribunal must dismiss the application because it is vexatious. Consequently, I must consider this submission first.

68. Section 55(1)(b) provides that the Tribunal may dismiss proceedings if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance.

67. Proceedings may be vexatious if the purpose for bringing the proceedings is for collateral purposes and not for the purposes of having the court or tribunal adjudicate on the issues to which the proceedings gave rise: Attorney-General v Wentworth (1988) 14 NSWLR 481 (Wentworth) at 491 (Roden J). Such a dismissal is sometimes said to be on the basis of the “collateral purpose principle”.

68. The collateral purpose principle operates only if the collateral purpose is the predominate purpose for bringing the proceedings, but it does not need to be the only purpose: Williams v Spautz (1992) 174 CLR 509 at 529; [1992] HCA 34 (Mason CJ, Dawson, Toohey and McHugh JJ). The applicant’s intention in bringing her application should be assessed objectively rather than subjectively: Zonnevylle v Secretary, Department of Education [2021] NSWCATAD 361 at [21] (Higgins SM).

Respondent’s submissions

71. The respondent submissions (RS 1 at [29]−[33]) may be summarised as follows:

1. The applicant's primary contention appears to be that a wide range of information held, used and disclosed by the respondent is "false".

2. Neither s 16 of the PPIP Act (IPP 9) nor any other provision of the PPIP Act or the HRIP Act provides that an agency must not hold, use or disclose “false” information. Rather, IPP 9 requires an agency to take steps that are reasonable in the circumstances to ascertain whether information is accurate before using the information.

3. The applicant has not suggested at any point (including in her original internal review application) that the respondent failed to take reasonable steps to ascertain the accuracy of the information concerned before using the information. The applicant has also failed to suggest what those reasonable steps ought to have been.

4. All this suggests that the applicant's complaints are not about breaches of the privacy legislation at all. Rather, the application appears to have been improperly brought for the collateral purpose of reviewing the clinical care provided to the applicant’s father.

5. The respondent submits that the applicant’s current application “appears to form part of the applicant's long running campaign—now midway through its second decade—to attribute blame to the respondent for her father's death”. The respondent notes that in the current proceedings the applicant “has made a number of highly scandalous allegations to the effect that the respondent's officers deliberately killed her father and have since engaged in a range of misconduct to cover up this fact”.

6. For this reason, the current application can properly be described as an abuse of the Tribunal's process. The PPIP Act should not be used "as a vehicle for the collateral review of the merits or validity" of the clinical and administrative actions of the respondent. In support, the respondent cites Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 (Crewdson).

7. Accordingly, the applicant’s current application should be dismissed under s 55(1)(b) of the NCAT Act.

Applicant’s submissions

72. The applicant’s submissions in reply (AS 2 at pp 22−25) may be summarised as follows:

1. The respondent has not challenged the applicant’s contention that the information is false.

2. The applicant is not challenging the information that is held, but rather she is challenging the respondent’s use and disclosure of information that its officers know is false. In this regard, she acknowledges “[t]he ability to challenge the truth or falsehood of material 'held' in the files of a dead person have been obliterated by the [Appeal Panel in the first NCAT case]”.

3. The applicant did not suggest reasonable steps that could have been taken by the respondent to ensure the information was correct the need to do so “self-evident” and “would not be unreasonable for me to expect not to have false information on file in the first instance, or for the Respondent not to take it as true, or that false 'confirmations' not be made”.

4. The applicant is not attempting to get the Tribunal to review her father’s clinical care because that is not its role. Rather, the applicant is trying to get the respondent to review that care because it has decided not to do so.

5. It is up to the respondent to provide evidence that it is not to blame for the death of the applicant’s father and to contradict her “scandalous accusations”. The respondent has not done so.

6. The applicant asserts she made it clear why she provided the medical information about her father that she did, advised that it was limited to questions of stroke and cause of death, and said that she had no need to provide proof of falsehood, as she had already provided it and it had not been challenged.

7. The applicant states that “I am only asking the Tribunal to review the conduct involved in making the false and misleading statements on the [icare form]”.

73. In the applicant’s final submissions (AS 4 at [3]) in reply to the respondent’s closing submissions (RS 2), the applicant reiterates her earlier submission that “the Respondent has made no attempt to deny that the claims are untrue, and so has implicitly accepted that they are, indeed, false” (emphasis in original).

74. With respect, the applicant’s submission is incorrect. It its closing submission, the respondent stated (RS 2 at [23]):

“Noting the Tribunal may determine the matter on the papers, the respondent wishes to place on the record that the applicant has made, and continues to make, a number of highly scandalous allegations of misconduct against the employees of the respondent and a number of related entities, including the Ministry of Health, icare, [the respondent’s insurance agent], as well as the respondent's legal representatives. The respondent considers these allegations to be entirely without basis. The Tribunal should pay nil regard to these allegations.”

75. It is clear the respondent denies the applicant’s allegations of serious misconduct. The allegations have not been accepted by acquiescence as the applicant suggests.

Consideration

76. As indicated above, the respondent relies on Crewdson in support of its submissions on the collateral purpose principle. The case concerned an application for judicial review of a decision of the Appeal Panel of the Administrative Decisions Tribunal (ADT) affirming a decision of an Area Health Service (as Health Districts were previously called) to refuse to correct the applicant’s heath record based on a request made under s 39 (c) of the now repealed Freedom of Information Act 1989 (NSW). Section 39(c) was the precursor to HPP 8.

77. The applicant in Crewdson had submitted that the medical opinion about his fitness to work contained in the record was wrong. The Court of Appeal dismissed the judicial review application. The principal judgment was given by Handley JA, who held the judicial review application should be dismissed on several grounds. His Honour held (at [24]) that one ground was:

“The appellant's attempt to use the Act as a vehicle for the collateral review of the merits or validity of official action should be rejected in any event. The Act is concerned with the accuracy of official records, not with the merits or legality of the official action recorded in them.”

78. Both the ADT and the Tribunal have applied this principle on many occasions, including in relation to administrative review applications under both the GIPA Act and PPIP Act: see, for example, GA v The University of Sydney (GD) [2010] NSWADTAP 31 at [24]–[25]; EJE v Nepean Blue Mountains Local Area Health District [2021] NSWCATAD 289 at [76] (Sarginson SM); GBV v Western Sydney Local Health District [2024] NSWCATAD 110 at [75] (Sullivan SM). In my view, the principle is simply an application in the privacy and government information context of the more general collateral purpose principle.

79. A finding that proceedings have been brought for a collateral purpose should not be made lightly because it can result in the dismissal of proceedings. A power to dismiss proceedings on the grounds they are an abuse of process or vexatious should be exercised “with great care” or “extreme caution”: Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 554; [1990] HCA 55 (Mason CJ, Deane, Dawson and Gaudron JJ).

80. Accordingly, it is necessary to identify the ulterior purpose, if there is one, with some precision: Miriani v Transport for NSW [2021] NSWCATAD 16 at [23] (Molony SM). This, in turn, requires me to examine closely the applicant’s submissions, the material she has lodged in support of them and the remedies she seeks.

81. An objective assessment of this material reveals the following:

1. The principal focus of the applicant’s current application is what is stated in the icare form and the Secretary’s letter following on from a letter she had sent the then Minister for Health expressing her concerns about her father’s death.

2. The icare form states her father died of a stroke. The applicant claims this is false. She has lodged material with the Tribunal, including medical material, that she considers shows this to be false. She also claims that what she perceives to be the respondent’s failure to deny her allegations that its officers killed her father, and that the respondent has engaged in a cover up, is evidence that she is right.

3. The Secretary letter’s states: “[f]ollowing review of the extensive investigations conducted by Nepean Blue Mountains Local Health District, the Health Care Complaints Commission, the NSW State Coroner, the NSW Civil and Administrative Tribunal, the Information and Privacy Commissioner, I am satisfied that the management of your concerns has been appropriate at local, district and state level, and was in line with respective complaints handling guidelines”. The applicant claims this letter relies on false material provided by the respondent about her father and herself and falsely states that the Tribunal conducted extensive investigations during the first NCAT case when in fact it declined to deal with her concerns.

4. The remedies the applicant seeks include an order requiring the respondent to take steps to notify the Minister for Heath and the Ministry of Heath of the “false” information provided by the respondent.

5. The applicant also seeks orders to compel the respondent to provide her with information about the role of a lawyer in relation to the preparation of the “false” insurance claim made in the icare form and the respondent’s conduct in relation to the first NCAT case. She claims that the Tribunal was misled by the respondent in that case.

82. Previous proceedings in the Tribunal concerning issues raised in current proceedings in the Tribunal brought by the same applicant can also be relevant to the determining whether the current proceedings have been brought for the collateral purpose of re-litigating the issues even if the previous proceedings were “bad in law” for lack of jurisdiction: Minister for Education and Early Childhood Learning v Zonnevylle (2020) 103 NSWLR 91; [2020] NSWCA 232 at [44] and [48] (McCallum JA, as her Honour then was, with Leeming and Macfarlan JJA agreeing).

83. Assessed objectively, the material referred to above clearly demonstrates that the applicant is seeking to use her application as a vehicle to hold the respondent and its officers to account for their conduct in relation to her father and also in relation to the first NCAT case. The alleged contraventions of the IPPs and HPPs are being used to question the merits of this official conduct. This is a collateral purpose of a kind that Crewdson held to be improper. The applicant has conceded as much in her submissions, where she states (AS 2 at p 25):

“I am only asking the Tribunal to review the conduct involved in making the false and misleading statements on the [icare form], in illegal use and disclosure, and in failing to make full and frank disclosure to the Insurer but instead using material illegally, so as to obtain financial benefit for themselves.”

84. Also, to the extent that the applicant seeks by bringing her current application to have the respondent correct “false” information about her father’s death and clinical care given to the Secretary of NSW Health and stated in the icare form, she is attempting indirectly to have the Tribunal require a correction about information she was denied the authority to request directly in the first NCAT case. This, together with the applicant’s request for an order requiring the respondent to explain why it went against the tenets of the the NSW Health Privacy Manual in the first NCAT case, indicate she is attempting to re-litigate that case.

85. For these reasons, I consider that the applicant has made her application predominately for improper collateral purposes directed to having the Tribunal review the official conduct of the respondent and its officers (both in relation to her father’s death and the information provided in the icare form and to the Secretary of NSW Health) and for the Tribunal to require the respondent to acknowledge this misconduct.

The merits of the current application

86. My decision that the applicant’s current application was made for improper collateral purposes makes it strictly unnecessary to deal with the merits of the applicant’s claims concerning contraventions of the PIPP Act and HRIP Act. However, in case I am wrong, I propose to deal with the central claims concerning these alleged contraventions.

87. The respondent makes general submissions concerning whether the applicant has standing to ask for an administrative review concerning the use or disclosure of her father’s personal health information or concerning conduct relating to the first NCAT case: RS 1 at [35]−[43] and [78]−[84].

88. In my view, there is substance to those submissions. However, even assuming the Tribunal has jurisdiction in relation to all the conduct raised by the applicant in issues 1–5 of her internal review application and the information concerned is relevantly personal or health information, I think that there has not been a contravention of the HPPs or IPPs in relation to any of those issues. My reasons can be stated briefly.

Contraventions of HPP 9 or IPP 9

89. HPP 9 and IPP 9 both prevent a public sector agency from using information it holds without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.

90. As the respondent submits, the principle does not prevent the use of false information; it prevents the use of information unless reasonable steps have been taken ensure the information is relevant, accurate, up to date, complete and not misleading having regard to the purpose for its use: RS 1 at [30]–[31], [57]–[63]. As noted above, the applicant has not identified reasonable steps that should have been taken because she expected a responsible public sector agency would take them anyway: AS 2 at p 24.

91. The decision made on the internal review conceded that the name of the applicant’s father was incorrectly stated in the icare and offered to correct it. Apart from this, it is unclear to me from the applicant’s submissions what steps the respondent failed to take when using the information in relation to any of the conduct raised in issues 1–5 that the applicant complaints about.

92. Accordingly, I do not consider that either HPP 9 or IPP 9 have been contravened even assuming the information concerned was health information or personal information covered by those principles.

Contraventions of HPP 10 or 11 or IPP 10 or 11

93. HPP 10 and IPP 10 prevent the use of information for a purpose that is secondary to the purpose for its collection except in limited circumstances. Similarly, HPP 11 and IPP 11 prevent the disclosure of information for a purpose that is secondary to the purpose for its collection except in limited circumstances.

94. Section 25 of the PPIP provides that a public sector agency is not required to comply with IPP 10 or 11 if:

1. the agency is lawfully authorised or required not to comply with the principle concerned, or

2. non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998 (NSW)).

95. Clause 10(2) and 11 (2) of Sch 1 to the HRIP Act make comparable provision in relation to HPP 10 and 11 respectively. The interpretation given to s 25 of the PPIP Act also applies to these provisions of the HRIP Act: AIL v Department of Premier and Cabinet (NSW) [2012] NSWADT 191 at [46] (N Isenbery JM); DQN v University of Sydney [2019] NSWCATAD 266 at [36] (Higgins SM).

96. Section 25(b) of the PPIP Act should not be viewed narrowly and a practical approach should be taken its application without the need to drill down into too much detail about the processes for provision of information under the alternative law: CYL v YZA [2016] NSWCATAD 314 at [97], approved on appeal in CYL v YZA [2017] NSWCATAP 105 at [56].

97. Issues 1, 2 and 4 raised by the applicant are essentially about the use or disclosure of information by the respondent and its officers in connection with the submission of the icare form, the conduct of the first NCAT proceedings and the provision of information to the Secretary of NSW Health and Minister for Health. All of this conduct, assuming it involves non-compliance with IPP 10 or 11 or HPP 10 or HPP 11, can fairly be described as non-compliance that is necessarily implied under an Act or any other law.

98. Non-compliance involving the use or disclosure to icare of information is necessarily implied under the NSW self-insurance scheme for public sector agencies established by the NSW Self Insurance Corporation Act 2004 (NSW) and State Insurance and Care Governance Act 2015 (NSW). The respondent, like any other person with insurance, has a duty to comply with the notification and disclosure requirements of its insurer. A failure to do so would make the NSW self-insurance scheme unworkable.

99. Non-compliance involving the use or disclosure of information in connection with the first NCAT case is necessarily implied under the NCAT Act and relevant enabling legislation. The respondent, like any other person who is being sued in the Tribunal, is entitled to use or disclose information to its legal advisors and to the Tribunal to mount its defence.

100. Non-compliance involving the use or disclosure of information to or by the Secretary of NSW Health and Minister for Health in responding to the applicant’s complaints to the Minister is necessarily implied by NSW Ministerial and departmental accountability requirements. The Minister for Health is one of the Ministers responsible for the administration of the Health Services Act 1997 (NSW) under which the respondent is constituted by s 17 read with Sch 1: Administrative Arrangements (Minns Ministry—Administration of Acts) Order 2023 (NSW), Sch 1 (Minister for Health). The government department called the Ministry of Health (also known as NSW Health) is in turn responsible to the Minister: Administrative Arrangements (Public Service agencies and Ministers) Order 2023 (NSW), Sch 1, s 1. The Secretary of NSW Health is the head of the department: Government Sector Employment Act 2013 (NSW), s 23 and Sch 1, Pt 1.

101. Issues 3 and 5 raised by the applicant, which are about conduct in relation to communications to the applicant concerning allegations of harassment by her and in relation to the handling of applications under the GIPA Act do not seem to me to involve the use or disclosure of information in contravention of the PPIP Act or HRIP Act. Rather, they are general expressions of dissatisfaction with conduct directed towards the applicant herself.

102. Accordingly, I do not consider that HPP 10, HPP 11, IPP 10 or IPP 11 have been contravened even assuming the information concerned was health information or personal information covered by those principles.

Conclusion

103. My decision that the applicant’s current application was predominately made for improper collateral purposes means her application is vexatious: Wentworth at 491. It follows that the appropriate order for the Tribunal to make is to dismiss her application under s 55(1)(b) of the NCAT Act because it is vexatious: cf Zonnevylle v Secretary, Department of Education [2021] NSWCATAD 361 at [19]–[24] (Higgins SM).

104. The respondent has reserved its position concerning costs and seeks leave for any application concerning its costs to be made within 14 days of the determination of the applicant’s current application: RS 1 at [115]; RS 2 at [22].

105. Section 60 of the NCAT Act provides that costs can be awarded only in special circumstances.

106. The orders made provide for the exchange of written submissions and other documents if the respondent wishes to make an application for costs. The orders also provide for the parties to include in their written submissions their views about whether the Tribunal can dispense with a hearing in relation to an application for costs. If an application for costs is made, the Tribunal will decide whether to dispense with a hearing.

Orders

107. The Tribunal makes the following orders:

1. The parties having been given the opportunity to make submissions as to whether the Tribunal should dispense with a hearing, and being satisfied that the matter can be adequately determined in the absence of the parties, the Tribunal dispenses with a hearing of the applicant’s application pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

2. The applicant’s application is dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW).

3. The respondent is, on or before 4pm on 21 June 2024, to give the applicant and the Tribunal any submissions and documents it intends to rely on in relation to any application for costs it wishes to make.

4. The applicant is, on or before 4pm on 5 July 2024, to give the respondent and the Tribunal any submissions and documents the applicant intends to rely on in response to an application for costs (if any) made by the respondent.

5. Pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW), the parties are to include in their written submissions their views about whether they consider that a hearing in relation to the application for costs can be dispensed with.

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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

Decision last updated: 07 June 2024