FY v Commissioner, Health Care Complaints Commission

[2003] NSWADT 128

CITATION:	FY v. Commissioner, Health Care Complaints Commission [2003] NSWADT 128
DIVISION:	General Division
PARTIES:	APPLICANT FY RESPONDENT Commissioner, Health Care Complaints Commission
FILE NUMBER:	023195
HEARING DATES:	21st March 2003
SUBMISSIONS CLOSED:	04/15/2003
DATE OF DECISION:	05/30/2003
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	Review of conduct of public sector agency
MATTER FOR DECISION:	Principal Matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Privacy & Personal Information Protection Act 1998
CASES CITED:	Sleiman v Kmart Australia Limited (2003) NSWADT 21 Citadin Pty ltd v Eddie Azzi Australia Pty Ltd & General Pants Co Pty Ltd (No.2) (RLD) (2001) NSWADTAP 31 Tu v University of Sydney (No.2) (EOD) (2002) NSWADTAP 25
REPRESENTATION:	APPLICANT No appearance (as to application for review) RESPONDENT K Eastman, Barrister
ORDERS:	1. Application for review of conduct of respondent dismissed.; 2. Respondent's application for costs refused.

REASONS FOR DECISION

1 Dr FY, a registered dental practitioner, who practises as a [suppressed], applied pursuant s 55 of the Privacy and Personal Information Protection Act 1998 (PPIPA) for review of the conduct of a public sector agency, the Health Care Complaints Commission (HCCC). As relevant to this case, the ‘conduct’ that may be the subject of such an application is ‘the contravention by a public sector agency of an information protection principle that applies to the agency’: PPIPA, s 52(1)(a). The application was lodged on 28 August 2002.

2 It is a pre-condition to the making of an application of this kind to the Tribunal that the public sector agency first be given the opportunity to carry out an internal review of the conduct in issue. Pursuant to s 53 of PPIPA the HCCC carried out such a review, rejecting FY’s complaint: letter dated 6 August 2002.

3 FY claimed that the HCCC had contravened PPIPA as a result of the way in which it had addressed a letter dated 17 April 2002 replying to a complaint by him about the way a patient complaint against him was being investigated by the HCCC. FY complained that the letter had wrongly been sent to an address at which he no longer consulted, [C]. He said that the letter should have been sent, as had other correspondence, to another work address, at [B]. He said that the HCCC’s letter dated 17 April 2002 had eventually arrived at his [B] address – a specific date is not given but based on statements made by FY in the material filed it was between 3 and 10 May 2002. FY claimed that the letter had been opened prior to reaching his [B] office, he said by the secretary to the professor who practised from the rooms at [C].

4 He also asked why the HCCC had chosen to send this letter to a different address to one that had been used in previous official correspondence with him.

5 Ultimately FY failed to provide the Tribunal with any formal evidence in relation to what the secretary did or as to how much of the contents of the letter of 17 April 2002 she may have read, or whether she had conveyed its contents to any other person. Nor was there any formal evidence as to what general arrangement existed with FY for the addressing of official correspondence.

6 The one fact that was agreed was that the letter itself did not bear any marking such as ‘Private & Confidential’. The HCCC’s evidence was that the outer envelope into which the letter had been placed did bear such a marking.

7 In his application FY sought an apology; compensation of $20,000 for breach of privacy and ‘subsequent tarnishing of my professional reputation by inaccurate and dishonest comments by a member of the HCCC’; and an order to the HCCC ‘instructing the agency to treat privacy seriously and professionally and an instruction to conform to the legislation in any future matters involving myself or other health care providers.’ The relief that the Tribunal may order in the event that a contravention of the information protection principles laid down by PPIPA is demonstrated are listed in s 55(2) and include monetary compensation (to a limit of $40,000) and orders of a positive or negative injunctive type.

8 FY did not identify with precision the information protection principles (IPPs) said to be contravened. In a letter dated 21 October 2002 responding to directions made on 4 October 2002 at a planning meeting, he stated that, in his opinion, the IPPs contained in s 16, s 18(1) and s 12(c) had been breached. Those provisions are set out below.

Security

‘ 12. Retention and security of personal information

A public sector agency that holds personal information must ensure:

…

(c) that the information is protected, by taking such security safeguards as are reasonable in the circumstances, against loss, unauthorised access, use, modification or disclosure, and against all other misuse, …’.

Accuracy
‘ 16. Agency must check accuracy of personal information before use

A public sector agency that holds personal 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.’

Limits of Disclosure
‘ 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.’

9 Two planning meetings were held on 4 October 2002 and 1 November 2002. (The office of Privacy Commissioner attended the planning meetings, through a staff member, Dr J Gaudin.) In compliance with the directions the HCCC filed a statement from Julie Kinross, who was Director Complaint Resolution at the HCCC and the author of the letter in issue. The letter in issue is a very detailed one, responding to a number of complaints made by FY as to the way in which officers of the HCCC reporting to Ms Kinross had dealt with him and with the content of the allegations made against him; and advising him that in light of his concerns the patient complaint against him had been transferred to another officer.

10 Ms Kinross stated that she typed the letter herself on her personal computer, and on 15 April 2002 caused it to be posted to him at [C]. She said that she placed the letter in a standard HCCC window-face envelope printed with the words ‘Private & Confidential’. She said that she received a complaint from FY on or about 15 May 2002 complaining that the words ‘Private & Confidential’ were not written on the letter itself.

11 At the 4 October 2002 meeting, FY was directed as follows:

‘Applicant to file and serve any evidence in support of contention 3 (which is the contention as to the contents of the letter being opened by a secretary to another medical practitioner, and the extent of any scrutiny of the contents before it was passed on to the Applicant); also re contention 4 to set out precisely what the Applicant sees as the items in the letter which involve contraventions of the Information Protection Principles, and why, within 14 days (by 18 October 2002).’
12 As noted, FY identified the IPPs that he said were contravened; by letter dated 21 October 2002. FY did not, and had not as at 21 March 2003, responded to the first part of the direction calling on him to file evidence in support of his contention regarding the circumstances of the alleged privacy infringement.

13 Ms Kinross’s explanation for sending the letter to FY’s [C] address was that she reasonably held an understanding that the address was that of a location from which he continued to practise. It was one of three work locations shown on his most recent correspondence with the agency.

14 FY’s official letterhead, as sighted by the Tribunal in the course of these proceedings (which it is assumed in the absence of evidence to the contrary was the same as that seen by Ms Kinross), shows FY’s name and professional qualifications on the left, has a logo in the centre, and then on the right sets out three addresses in a column format as follows:

‘[A]

[B]

[C]

(SPECIAL APPOINTMENT ONLY)’

15 In addition the letterhead has set immediately below the centred logo, the words ‘ALL APPOINTMENTS [suppressed]’ and to the right in line with the addresses column ‘Fax: [suppressed].’

16 There was a further planning meeting on 1 November 2002. It was noted that FY had yet to provide a statement from the secretary who he said opened the envelope and scrutinised the contents of the letter. He was given 7 days in which to file any remaining material, and the matter was listed for hearing on 6 December 2002. Subsequently at the request of FY the date was vacated and the matter relisted for 21 March 2003.

17 On 7 March 2003 FY by letter requested a further adjournment. The HCCC objected, and the request was refused. The Registry so advised by letter dated 14 March 2002, addressed to the [B] address.

18 The HCCC appeared on 21 March 2003 through Ms Eastman of counsel, instructed by a solicitor. There was no attendance by FY.

19 The HCCC filed written submissions and relied on the statement made by Ms Kinross, referred to above.

20 The HCCC submitted that the application should be dismissed pursuant to the powers of the Tribunal conferred by s 73(5)(h) of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) which provides:

‘ 73. Procedure of the Tribunal generally

… (5) The Tribunal:

…

(h) may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance.’

21 This power of summary dismissal is said to be in addition to the Tribunal’s usual powers in respect of applications of the present kind. The usual powers are found in s 55(2) of PPIPA, referred to briefly earlier in these reasons, which provides, as relevant:
‘ 55. Review of conduct by Tribunal

… (2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders:

(a) subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct,

(b) an order requiring the public sector agency to restrain from any conduct or action in contravention of an information protection principle or a privacy code of practice,

(c) an order requiring the performance of an information protection principle or a privacy code of practice,

(d) an order requiring personal information that has been disclosed to be corrected by the public sector agency,

(e) an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by FY,

(f) an order requiring the public sector agency not to disclose personal information contained in a public register,

(g) such ancillary orders as the Tribunal thinks appropriate.

…’.
22 Following consideration of the HCCC’s submissions, the Tribunal made an order dismissing the application, delivering an ex tempore decision. A revised version of the reasons follow, and begins with a summary of the HCCC’s submissions.

23 Following the making of the order the HCCC applied for an award of costs. The Tribunal reserved its decision. These reasons deal with that application.

(1) Application for Review

24 Respondent’s Submissions: The HCCC submitted that the application was misconceived.

25 The HCCC referred to PPIPA, s 4(3) which provides that ‘Personal information does not include …: (b) information about an individual that is contained in a publicly available publication.’

26 The HCCC claimed that the information in issue, FY’s professional address, was ‘publicly available’ in that it was disclosed by FY on his letterhead. Accordingly the jurisdiction of the Tribunal was not enlivened.

27 If the information in issue was covered by PPIPA, the HCCC then contended that it was very difficult to see what principles were said to be infringed. The HCCC said that the letter was addressed to him, the letter was only intended for him. It was said that this was not a case where the HCCC has taken personal information concerning FY and sought to misuse that information, either in the manner that it has collected that information, or in the way it has disclosed that information to a third person. It was submitted that there was nothing in the material to suggest that the address to which the HCCC sent the letter was not an address where he conducts his relevant practice.

28 The HCCC also submitted that there was nothing in PPIPA which placed an obligation on the HCCC to mark its correspondence in any particular way. This was a reference to FY’s contention that the HCCC should have marked the letter itself, ‘Private & Confidential’. Nor, it was said, did the HCCC have any obligation under PPIPA to ensure that the only person who would open such a letter, once it is received at the relevant address, would be the person to whom it is addressed.

29 In the alternative, the HCCC submitted that the evidence shows that the practice of the HCCC in sending correspondence of this nature is to be conscious of privacy issues in relation, not only to the person who is the subject of the allegations, but also those who may have made allegations or have information relevant to the inquiry. The HCCC said that its usual practice was in fact to mark the letters themselves ‘Private & Confidential’. Though this had not occurred in this case, there was nothing to suggest that the use of the stamp ‘Private & Confidential’ on the covering envelope had been insufficient in the circumstances to protect FY or his interests. The HCCC contended that it had done as much as it could do, and the responsibility belonged to FY to conduct the handling of his professional correspondence in a manner which took account of the potential sensitivities of correspondence addressed to him.

30 The HCCC noted that FY had not provided any evidence of his administrative practices in dealing with incoming mail.

Decision as to Application

31 The Tribunal ruled as follows. The oral reasons delivered on the day have been slightly revised in the following text.

32 The matter before the Tribunal is an application for review of conduct of a public sector agency under PPIPA. The application was filed on 28 August 2002 by FY.

33 The application refers to a communication received by FY, who is a dental practitioner. The communication was made in the context of a complaint that was being dealt with by the HCCC. The communication was sent to FY, according to the only evidence that we have on the matter, from Ms Kinross of the Commission in an envelope that was stamped ‘Private & Confidential’ and had a transparent window to show the name and address of the addressee.

34 The enclosed letter was addressed to FY at [C]. The essence of the grievance of FY is that the communication was sent to what he regards as the wrong address - as I have understood his concerns from the two planning meetings that he attended prior to today. He has asserted that the letter was opened by persons other than himself and the contents of the letter possibly read by them.

35 The letter contains statements which would arouse, one would think, deep concern on the part of a practitioner affected by those statements. It is the difficult task of the Health Care Complaints Commission, under its statute, to engage in communications of that kind on a not infrequent basis. As Ms Eastman has pointed out, FY has produced no evidence of his own as to what any person who opened the original correspondence may have seen by way of the covering envelope, and, similarly, what any person who had any access to the correspondence before he saw it actually read.

36 FY has not attended the Tribunal today. In a letter dated 7 March, he requested that the matter be adjourned. That request for adjournment was refused and he was notified of that decision of the Tribunal by letter dated 14 March 2003. The Tribunal Act governs the procedures to be followed by the Tribunal. As the Tribunal has noted on other occasions, the powers of dismissal do not specifically deal with non-attendance and non-prosecution.

37 They deal with virtually every other type of circumstance that might be relevant to exercising the power of dismissal, which leads to somewhat of a difficulty when the situation we have before us today arises.

38 In my view, non-prosecution of a complaint could possibly, in its own right, permit the Tribunal to move to dismiss a complaint, and if the question of where the power comes from is a real question, then possibly the appropriate approach is to treat the situation as one where FY, by virtue of non-prosecution, has, in effect, withdrawn the application, which is the power of dismissal, given under 73(5)(g), which provides: ‘The Tribunal may dismiss at any stage any proceedings before it if FY withdraws the application to which the proceedings relate.’ It is not necessary to resolve that issue.

39 In any event Ms Eastman has attended today with a view to contending that the complaint is ‘misconceived’, or ‘lacking in substance’, within the meaning of 73(5)(h).

40 In my view it is clear as a practical matter that a dental practitioner who has communicated, as I understand the position is in this case, with the HCCC, and more recently with this Tribunal, in circumstances where he routinely gives as one of his work addresses [C], cannot complain or be surprised if those that deal with him use that as an address for contact.

41 His letterhead, even in recent days (see letter to Tribunal dated 7 March 2003) shows three addresses, one being [A], the second being [B], with the specific address given in each case. And the third shown is the [C] address. As I noted in dealing with FY during the planning meetings, it is difficult to see what possible transgression there could be in circumstances where the official body is dealing with a person over whom it has jurisdiction by addressing correspondence to their official address.

42 The proposition put by Ms Eastman [that the complaint is incompetent because no ‘personal information’ within the meaning of PPIPA is affected] is not one that I am prepared to embrace at this stage. In my view it is clearly far more than a case about an address. I do not want today to get into any situation of making a formal ruling without detailed argument on whether an address provided by someone in their business correspondence is in all circumstances outside the meaning of ‘personal information’ for the purposes of PPIPA. I had not understood this to be a case merely about an address.

43 The information of concern to FY, as revealed by the planning meetings, was the contents of the letter which contained reference to allegations, which if sustained, might well give rise to a finding of professional misconduct against him. The HCCC’s failure, as he saw it, to address properly the correspondence gave rise to the possibility that persons with no proper interest in the contents had been given the opportunity to read that information.

44 Ms Eastman’s other submission [there is nothing in PPIPA obliging the HCCC to address or envelope its correspondence in a particular way] involves a somewhat black letter reading of the legislation. Privacy laws (and possibly freedom of information laws and some other laws) are, to some extent at least, examples of ‘fuzzy’ law. They articulate broad values or as to how personal information is to be handled. How those standards and values are to be worked out in practice are really left to a range of subordinate measures, some of which will be codes of conduct, others may well be rulings of this Tribunal; and there will be guidelines developed in agencies and so on. [See further O’Connor K P, ‘The Federal Privacy Act: Pursuing a Systemic Approach’ (2001) UNSWLJ 255.]

45 I do not think one can make any dogmatic statement that PPIPA, properly interpreted in relation to a particular set of circumstances, might not require attention to forms of marking or other measures that secure the confidentiality of the contents of a communication. One can easily identify circumstances where a letter addressed to a practitioner at a general receipt address in, for example, a major public hospital might require special markings or security procedures. The HCCC would, I expect, through the knowledge that it has of the administration of those environments, be aware of the possibility that a letter from it containing sensitive allegations against a health care practitioner might pass through a number of hands before reaching the practitioner. It may well be appropriate to have levels of security in place that minimise that possibility [envelope markings, special addresses, internal markings, special delivery arrangements].

46 In saying that, I am sure that the HCCC is quite sensitive to the points I am making. But I just want to head off any suggestion that we should seek to make dogmatic rulings based on a narrow reading of PPIPA as to what is proscribed or not proscribed as proper compliance with the general standards set out in PPIPA.

47 Formally the application is dismissed pursuant to s 73(5)(h) as ‘lacking in substance’ on the basis of insufficient evidence to warrant any further consideration.

(2) Respondent’s Application for Costs

48 The HCCC applied for its costs of attendance on 21 March 2003. The HCCC referred to the usual costs power of the Tribunal as the basis for its application. The Tribunal Act, s 88, as material, provides:

‘ 88. Costs

(1) 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 there are special circumstances warranting an award of costs.

(2) …

(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.’

49 The HCCC noted that there had been an application by FY to adjourn the hearing, and that it had been refused. The HCCC submitted that FY was on notice that these proceedings would be determined on the day set down (21 March 2003). The HCCC submitted that he had had ample opportunity to provide such information and material as might assist him in relation to prosecuting this claim; and contended that, for whatever reason, FY had made a conscious decision not to appear. The HCCC noted that FY had not provided any notice of his failure to appear, either to the Tribunal or to the HCCC. The HCCC referred to the factors relevant to a finding of ‘special circumstances’ in a recent Equal Opportunity Division decision, Sleiman v Kmart Australia Limited [2003] NSWADT 21.

Initial Response to the Submissions

50 The Tribunal made the following comments in the ex tempore reasons delivered on 21 March 2003.

51 FY has not attended today. Not surprisingly he has been met by a costs application. The usual principle in proceedings in the Tribunal is that each party bear their own costs. That provision is a liberal one. It contrasts with the position that usually applies in litigation in Courts and often in Tribunals. It is vital that parties respect the position that that gives rise to, which is that one of the parties to the litigation will leave often successful, wholly or at least in part, at the end of litigation, and not be able to recover their expenses in that regard.

52 It follows from that that both parties, but in a sense, in particular, the party that ultimately loses, has a responsibility to the other party to ensure that unnecessary costs are avoided. We have a situation today, not unreasonably, where the Commission has attended with one of its officers or a solicitor, together with counsel. Obviously, significant expense has been incurred. FY applied to have the hearing deferred. His application was referred to the Commission, the Commission opposed it, the Tribunal considered it, and took the view that there was no reasonable basis for not proceeding today.

53 The matter was filed last August. It is now March, six months later. It is reasonable and appropriate that the matter be finalised and determined. The considerations that Ms Eastman puts forward are substantial considerations favouring the exercise of the discretion that is given to the Tribunal under s 88 to make a costs order against FY.

54 I have, either at first instance or as President of Appeal Panels, looked at this question of costs on more occasions than I would have wished to, especially in the retail leases jurisdiction. A number of observations have been made by me on the need for parties to behave responsibly, as really a quid pro quo for having a special deal, as compared to the usual position in our system of justice in relation to costs in civil and administrative litigation. [See, for example, Citadin Pty Ltd v Eddie Azzi Australia Pty Ltd & General Pants Co Pty Ltd (No. 2) (RLD) [2001] NSWADTAP 31 (retail leases jurisdiction); Tu v University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25 (equal opportunity jurisdiction).]

55 So it will be obvious from those comments that I favour the application of Ms Eastman. I do not propose to grant it at this stage, because I am concerned that there may be some submissions that FY should be given an opportunity to make. So what I propose to do is indicate a provisional view in favour of the application, and give FY seven days from the provision of a transcript of your application, Ms Eastman, and my comments on it, an opportunity to make any written submissions.

56 I do not require any further attendance by the HCCC. I will simply deal with the matter on the papers at that point. So the position is that the application to dismiss the application for review is granted, and the application for costs is adjourned, subject to the direction I have given as to notification of FY, and giving him an opportunity to reply.

FY’s Submissions

57 The text of the submissions made by the HCCC were transcribed and the transcript forwarded to FY for any submissions.

58 Request to Reopen Proceedings: First of all, FY requested the Tribunal to reopen the proceedings; and did so initially by telephone to the Registry. The application was refused, by way of letter dated 4 April 2003.

‘I refer to your recent communications with the Registry indicating that you did not receive the Registrar’s reply to your application to vacate the hearing date set for 21 March 2003.

In those circumstances, you were not, in my view, at liberty to choose not to attend. Until such time as you were advised positively that your application to vacate the date was successful, it was your obligation to treat the date as remaining in force.

Accordingly, I will not reopen the matter.

You will see from the enclosed transcript of the hearing on 21 March 2003 that the agency has made an application for costs to be paid by you. I now give you 7 days from Tuesday 8 April 2003 in which to reply in writing to those submissions.

After that time I will proceed to make a decision on the costs application.’

59 FY lodged submissions by letters dated 7 April 2003 and 14 April 2003. In the letter of 7 April, he said referring to the decision not to permit an adjournment: ‘I understand that you chose to proceed with the hearing on the above date in my absence which was for the reasons detailed in my letter dated 7 March 2003, and I understand that the ADT sent a letter dated 14 March 2003 to the [B] address notifying me of this decision thought this does not appear to have arrived.’ FY went on to refer to having obtained a copy of the letter from the Registry on 4 April 2003, and wondered why he had not been contacted on the mobile phone number that he had given on his application form.

60 My reply of 4 April 2003 crossed with FY’s letter of 7 April. That led FY to send another letter dated 14 April 2003. The letter contained submissions going to the substance of the decision of 21 March 2003.

61 Reply as to Costs: As to costs, FY submitted that the reference by Ms Eastman to the case of Sleiman v Kmart was inappropriate as the conduct of concern there had involved the making of untruthful statements. I accept FY’s submission, and do not regard Sleiman as offering an appropriate analogy for dealing with the present case.

62 He submitted that there seemed to be ‘no fair or genuine reason’ for this application from the HCCC. He referred to the scale of the organisation, their decision to use legal representation being their choice, and not one he believed he had encouraged in any way.

Assessment

63 If I have the power to make any award of costs in matters arising under the PPIPA (as to which see my further observations below) my conclusion in this case is that I should not make an award.

64 FY’s reasons for non-attendance involved, to put it at its most favourable to FY, a misunderstanding that might perhaps be held by a litigant in person as to the effect of a request for an adjournment on whether a matter is to go ahead. While I have found formally that the application lacked substance because of insufficient evidence, it did raise two issues of relevance to the operation of the IPPs and PPIPA generally: (1) the degree to which letters sent out by bodies such as the HCCC contained sensitive communications involving personal information (both as to the practitioner and the persons who have made complaints, and in this case references also to the conduct of officers of the agency) should externally and internally mark their correspondence with special markings such as ‘Private & Confidential’; and (2) the need of both parties to such communications (in this case the practitioner and the HCCC) to have a consistent understanding as to what the address for contact and service is.

65 FY faced the difficulty that the HCCC had used one of his given official addresses, though he asserted in his original complaint about the matter to the HCCC that he had understood the agency to have agreed to communicate with him at another of the addresses. FY also failed to comply with the direction to put on evidence from the secretary as to the extent of the harm (unwanted scrutiny of sensitive information) that he felt that he had suffered. In light of these factors, the case was always a weak one.

66 There are numerous decisions of the Tribunal now going to the question of what might constitute ‘special circumstances’ dealing with a variety of forms of conduct. The unifying thread is that the conduct is affected by a degree of unreasonableness that goes beyond what might be appropriate in connection with the reasonable conduct of litigation. FY’s conduct was at the margins. In the ultimate my conclusion is that there should be no award of costs.

67 Jurisdiction in relation to Costs in PPIPA proceedings: It is arguable whether the Tribunal has any power to award costs. As I have not had the opportunity to hear detailed argument on the point, I do not propose to make any final ruling on the point on this occasion.

68 I simply note the following. The Tribunal Act s 88(1) sets down the general rule. It is subject to the qualification contained in s 88(3) that ‘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’. An ‘original decision’ is ‘a decision of the Tribunal made in relation to a matter over which it has jurisdiction under an enactment to act as the primary decision-maker’: Tribunal Act, s 7. The scheme of the Tribunal Act divides the work of the Tribunal conceptually into two categories, the making of ‘original decisions’ and the ‘review of reviewable decisions’. A ‘reviewable decision’ is defined by s 8 as ‘a decision of an administrator that the Tribunal has jurisdiction under an enactment to review’.

69 An aggrieved person may apply under PPIPA ‘for review of the conduct of a public sector agency’: s 55(1). The making of such an application is conditional on the person aggrieved not being satisfied with the ‘findings’ of the agency’s internal review, or ‘the action taken by the agency in relation to the application [i.e. the prior application for internal review]’. Is the power of determination vested in the Tribunal one that involves the making of an ‘original decision’ or the ‘review of a reviewable decision’? If it is an ‘original decision’ then s 88(3) requires that the primary legislation, i.e. PPIPA, confer the power to order costs. There is no such conferral in PPIPA.

70 In the ‘review of reviewable decisions’ jurisdiction of the Tribunal, the Tribunal is a second-tier decision-maker. The primary decision is made in the agency, and is conventional to refer to the agency as the primary decision-maker. (There will usually have been two prior agency decisions, its original decision, and the further decision made on internal review, where that facility is available.)

71 An application for review of ‘conduct’ does not equate precisely with an application for review of a ‘decision’. It might be argued that PPIPA is better treated as involving a scheme where the Tribunal is not engaged in the making of an ‘original decision’. This argument might proceed on the basis that the task that the Tribunal is engaged in can only proceed if there have been ‘findings’ or ‘action taken’ by the public sector agency. Both of these forms of conduct must involve ‘decisions’.

72 A similar doubt could perhaps be raised as to the order-making powers of the Tribunal, to the effect that the orders open to the Tribunal to be made are those conferred by s 55(2) but not those additional order-making powers given by s 73 of the Tribunal Act. In my view, unless plainly inconsistent the two Acts, PPIPA and the Tribunal Act, should be read together so as to give maximum efficacy to the operations and procedures of the Tribunal. On that basis, I am satisfied that the general order-making powers contained in s 73 of the Tribunal Act are open to be invoked, as the respondent did in this case.

Order

1. Application for review of conduct of respondent dismissed.

2. Respondent’s application for costs refused.