KT v Sydney Local Health District (GD)

[2012] NSWADTAP 43

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

KT v Sydney Local Health District (GD) [2012] NSWADTAP 43

Hearing dates:

29 May 2012

Decision date:

31 October 2012

Before:

Judge K P O'Connor, President
C Huntsman, Judicial Member
J McClelland, Non-judicial Member

Decision:

1. Appeal dismissed.

2. Respondent's application for costs of the appeal: directions as per para [61].

Catchwords:

PRIVACY - Appeal by Review Applicant - Health Privacy Principles - Tribunal found no contraventions - Injuries to Employee - Taking of Photographs by Employer - Consent - Lawful Purpose; Subsequent Use and Disclosure of Photographs by Employer; Handling of Employee's Access and Amendment requests - Appeal dismissed. Health Records and Information Privacy Act 2002; Health Privacy Principles 4; 11; 7, 8

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Health Administration Act 1982
Health Records and Information Privacy Act 2002
Privacy and Personal Information Protection Act 1998

Cases Cited:

KT v Sydney Local Health District (formerly Sydney Local Health Network) (No 2) (Costs) [2011] NSWADTAP 42
Kuhl v Zurich Financial Services Aust Ltd [2011] HCA 11

Category:

Principal judgment

Parties:

KT (Appellant)
Sydney Local Health District (Respondent)

Representation:

Counsel
M Moir (Respondent)
In person (Appellant)
A Bridges-Webb, GILD Insurance Litigation Pty Ltd (Respondent)

File Number(s):

129001

 Decision under appeal 

Jurisdiction:

9108

Citation:

KT v Sydney Local Health Network [2011] NSWADT 292

Date of Decision:

2011-12-09 00:00:00

Before:

General Division

File Number(s):

103094

REASON FOR DECISION

1. The appellant was at work at the Royal Prince Alfred Hospital (RPAH) on 31 July 2008. Around noon on that day he was injured in an altercation with a co-worker. He was cut about the nose and head, and bled profusely. He went to the security manager's office, complained over what had happened and sought assistance. The security manager, Mr Hughes, took various steps to deal with the situation. They included calling the police, taking photographs and later supplying those photographs to the manager of the RPAH's internal investigation unit, Ms Jackie Mills, and to the police.

1. The police took statements. They also took photographs. They charged the co-worker with assault. The charges were heard at Newtown Court in April 2009. The court received evidence from the appellant and from the defendant. The material before the court included the photographs of the appellant's injuries taken by the police. The court dismissed the charges, and observed in its reasons that it considered that the defendant had been acting in self-defence when he hit the appellant.

1. In the meantime, the appellant had lost his job at the RPAH. It had barred him from the workplace in November 2008, and, following a disciplinary investigation, dismissed him in January 2009, primarily because of several instances of conduct towards other employees of the RPAH that it considered breached his obligations as an employee, and warranted dismissal.

1. The appellant took action in the Industrial Relations Commission over his dismissal. In those proceedings the agency filed material that included the three photographs taken by Mr Hughes. After that he contacted Ms Whalan, the Director of Corporate Services, RPAH (on 19 January 2010) and Mr Hughes (on 1 February 2010) seeking to exercise his access and amendment rights.

1. He lodged his internal review complaint with RPAH on 7 February 2010, the key part expressed as follows (the appellant is from a non-English speaking background, his first language being Arabic):

"1. Mr Ross Hughes had taken some personnel photos for me while I was in Emergency Department of RPAH lying on the bed, when l was injured. And took photos of my injury. He took these photos without my permission. I have not given him or any RPAH staff the permission to get photos for me. Contravening the Privacy legislations and Surveillance Act".

2. "Mr Ross Hughes has misused these photos and disclosed it to third parties (HR, SSWAHS, Lawyer, Police, etc) without my consent".

3. "Mr Ross Hughes had misused and disclosed my photo in secondary purpose without consent from me, the primary purpose was for ID and Parking only, but he misused it and disclosed it to IRC and SSWAHS in other purposes without consent from me".

4. I requested Mr Hughes to let me access to my personnel or health information he has, to check its accuracy and the purpose of holding these health and personal information, he refused me to access to these documents or information".

5. I requested Mr Hughes to amend, correct and destroy the images he got if in an unlawful way, and he refused".

6. I found out Ms Jan Whalan (who have conflict of interest with me) sent two letters, supporting Mr Hughes in retaining the photos, and ignored my request to access these information".

7. I requested RPAH to stop the consent l gave to the primary purpose, and she refused."

1. There are two State privacy laws regulating the handling by public sector agencies of a person's personal information: the Privacy and Personal Information Protection Act 1998 (PPIP Act) and the Health Records and Information Privacy Act 2002 (HRIP Act). Which Act applies depends basically on whether the personal information in issue falls within the meaning given to 'health information' by the latter Act. If it does, the latter Act applies.

1. We note at this point that the RPAH is a unit of a larger agency of the Health Department, known at the time of these events as the Sydney South West Area Health Service (SSWAHS), later known as the Sydney Local Health Network and now known as the Sydney Local Health District. The subsequent references to the agency in these reasons, subject to context, are to the SSWAHS and its successors.

1. The agency approached the complaint on the basis that the photographs fell, in the circumstances, within the meaning of 'health information'. The agency's review held that there were no breaches of the relevant principles, the Health Privacy Principles (see HRIP Act, Schedule 1) in the way its officers had conducted themselves in the matters raised by the appellant. Dissatisfied with the response, the appellant exercised his right to apply to the Tribunal for review of the conduct.

1. The Tribunal held a hearing over four days. The agency led evidence in support of its conclusion that the appellant had given consent to the taking of the photographs and in support of the propriety of the uses and disclosures later made of the information. It also led evidence in relation to the dealings that occurred between Ms Whalan and Mr Hughes on the one hand and the appellant on the other hand in January and February 2010. The appellant gave evidence, and also led evidence from other witnesses (who included his former wife and his daughter) that contradicted many aspects of the evidence given by the agency's officers, in particular Mr Hughes.

1. The Tribunal agreed with the agency's conclusions, save in one respect. It considered that it was wrong not to accede to the appellant's request at point 7 of the original complaint that it cease to use his records for their 'primary purpose', i.e. his health care. The Tribunal considered, contrary to submissions of the agency and its internal review report's conclusions, that the HPPs 7 and 8 did not prevent a record subject from withdrawing a previously given consent to use of records for a primary or secondary purpose. It held at para [121]:

121 I agree with KT that the agency did not properly respond to his request that his withdrawal of consent be noted. The request required that a notation be placed on both his hard copy and electronic health records noting that he had withdrawn his consent to the agency's use of his health information. The failure to do so represents a failure by the agency to ensure that his health information was accurate and up to date.

Tribunal's Decision in Summary as to Complaints 1-6

1. After setting out in detail the factual circumstances and legal provisions relevant to the complaints as a whole, the Tribunal then dealt with each of the complaints separately.

1. The following summary refers to complaints 1 to 6, as there is no appeal from the agency in respect of the Tribunal's conclusion in respect of complaint 7.

1. Complaints 1 and 2: The Tribunal divided its treatment of these complaints into four issues.

1. (a) Whether the security manager's conduct in collecting the personal information constituted by the three photographs complied with the applicable principles. Refer reasons [65]-[72]. The Tribunal accepted that the information conveyed by the photographs could be regarded as 'health information', and proceeded to apply to examine the question of whether HPP 4 had been satisfied. The appellant's primary assertion was that he had not given permission for the photographs to be taken.

1. HPP 4 provides:

4 Individual to be made aware of certain matters

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

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

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

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

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

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

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

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

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

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

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

(4) An organisation is not required to comply with a requirement of this clause if:

(a) the individual to whom the information relates has expressly consented to the organisation not complying with it, or

(b) the organisation is lawfully authorised or required not to comply with it, or

(c) 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), or

(d) compliance by the organisation would, in the circumstances, prejudice the interests of the individual to whom the information relates, or

(e) the information concerned is collected for law enforcement purposes, or

(f) the organisation is an investigative agency and compliance might detrimentally affect (or prevent the proper exercise of) its complaint handling functions or any of its investigative functions.

(5) If the organisation reasonably believes that the individual is incapable of understanding the general nature of the matters listed in subclause (1), the organisation must take steps that are reasonable in the circumstances to ensure that any authorised representative of the individual is aware of those matters.

(6) Subclause (4) (e) does not remove any protection provided by any other law in relation to the rights of accused persons or persons suspected of having committed an offence.

(7) The exemption provided by subclause (4) (f) extends to any public sector agency, or public sector official, who is investigating or otherwise handling a complaint or other matter that could be referred or made to an investigative agency, or that has been referred from or made by an investigative agency.

1. Ultimately, the Tribunal preferred the evidence of Mr Hughes. It was satisfied that the appellant had consented to the taking of the photographs (see HPP 4(4)(a), and, further, that his conduct complied with HPP 4 in the circumstances.

1. (b) Whether the subsequent disclosure of those photographs to the police was lawful. Refer reasons [73]-[77]. The disclosure of health information to an external body (here the police) is regulated by HPP 11. HPP 11's provisions that are possibly relevant to this case follow:

11 Limits on disclosure of health information

(1) 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:

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

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

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

...

(j) Law enforcementthe disclosure of the information for the secondary purpose is reasonably necessary for the exercise of law enforcement functions by law enforcement agencies in circumstances where there are reasonable grounds to believe that an offence may have been, or may be, committed, or

...

(2) An organisation is not required to comply with a provision of this clause if:

(a) the organisation is lawfully authorised or required not to comply with the provision concerned, or

(b) 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), or

(c) the organisation is an investigative agency disclosing information to another investigative agency.

...

1. The Tribunal was satisfied that the first exception (consent) had been satisfied (HPP 11(1)(a)). In any case the Tribunal was satisfied that the second exception (the individual would reasonably expect a disclosure for the secondary purpose of law enforcement) was met.

1. In addition the Tribunal held that the agency's use of the information complied with the restrictions on the internal use of health information set by HPP 10. HPP 10's provisions that are possibly relevant are in similar terms to those quoted above from HPP 11:

10 Limits on use of health information

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

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

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

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

...

(i) Law enforcementthe use of the information for the secondary purpose is reasonably necessary for the exercise of law enforcement functions by law enforcement agencies in circumstances where there are reasonable grounds to believe that an offence may have been, or may be, committed, or

...

(2) An organisation is not required to comply with a provision of this clause if:

(a) the organisation is lawfully authorised or required not to comply with the provision concerned, or

(b) 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).

...

1. (c) Whether the Disclosure of the Photographs to the agency's lawyers and their subsequent use and disclosure in the Industrial Relations Commission proceedings was lawful. Refer reasons [78]-[82]. The Tribunal declined to deal with the disclosure aspect of this matter on the ground that it had not been raised in KT's internal review application to the agency. It applied Tribunal case law holding that the scope of review is set by the scope of the internal review application reasonably construed. As to the internal use by the agency of the photographs for employment-dispute-related purposes to brief its lawyers, it held use of this kind was permitted under HPP 10.

1. (d) Whether the agency's Use of Photographs in the IRC proceedings was lawful. Refer reasons [83]-[87]. For similar reasons, the Tribunal held this conduct lawful.

1. Complaint 3: At the time, Mr Hughes gave a statement to the police about the alleged assault and attached to it copies of the hospital identification photographs of the three employees closely involved in the incident (including KT). According to KT, he first became aware of the use of his 'ID' material in this way when he received the agency's filing in the IRC proceedings.

1. (a) Whether the agency could use the appellant's ID photograph in material filed in the IRC proceedings. Refer reasons [88]-[101]. The Tribunal accepted that this use was for a purpose reasonably to be expected, and therefore permitted by HPP 10.

1. Complaints 4 and 5: After service of the agency's documents in the IRC proceedings, KT sent two faxes, followed by a phone call, to Mr Hughes on 1 February 2010 applying for access to his 'personnel' and 'health' information. Mr Hughes did not respond directly, but referred them under agency procedures to the agency's privacy contact officer.

1. HPPs 7 and 8 provide:

7 Access to health information

(1) An organisation that holds health information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information.

Note. Division 3 (Access to health information) of Part 4 contains provisions applicable to private sector persons in connection with the matters dealt with in this clause.

Access to health information held by public sector agencies may also be available under the Government Information (Public Access) Act 2009 or the State Records Act 1998.

(2) An organisation is not required to comply with a provision of this clause if:

(a) the organisation is lawfully authorised or required not to comply with the provision concerned, or

(b) 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).

8 Amendment of health information

(1) An organisation 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:

(a) is accurate, and

(b) having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading.

(2) If an organisation is not prepared to amend health information under subclause (1) in accordance with a request by the individual to whom the information relates, the organisation must, if so requested by the individual concerned, take such steps as are reasonable to attach to the information, in such a manner as is capable of being read with the information, any statement provided by that individual of the amendment sought.

(3) If health information is amended in accordance with this clause, the individual to whom the information relates is entitled, if it is reasonably practicable, to have recipients of that information notified of the amendments made by the organisation.

Note. Division 4 (Amendment of health information) of Part 4 contains provisions applicable to private sector persons in connection with the matters dealt with in this clause.

Amendment of health information held by public sector agencies may also be able to be sought under the Privacy and Personal Information Protection Act 1998.

(4) An organisation is not required to comply with a provision of this clause if:

(a) the organisation is lawfully authorised or required not to comply with the provision concerned, or

(b) 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).

1. KT had not received a reply by 7 February, and lodged an application for internal review of the agency's conduct under the HRIP Act, complaining of excessive delay, in breach of HPP 7. The Tribunal dealt with one issue.

1. (a) Whether the agency contravened its obligation by engaging in excess delay in dealing with his request for access to health information. Refer reasons [102]-[109]. The Tribunal held that in the circumstances there was no breach of HPP 7 in that the point had not been reached as at 7 February of any excessive delay in responding to the application.

1. Complaint 6: The Tribunal dealt with the following issue:

1. (a) Whether the agency failed to deal with an access and amendment request said to have been made first in 2008 and referred to in a letter of 19 January 2010 to Ms Whalan. Refer reasons [109] ff, esp [116]. The Tribunal found that there was no evidence of any such prior request.

The Appeal

1. An appeal may be made on a 'question of law', and if the Appeal Panel grants leave, it may be extended to the merits: HRIP Act s 21; PPIP Act s 56; Administrative Decisions Tribunal Act 1997 (ADT Act), ss 112-113.

1. The appellant's notice of appeal has 16 items under the heading 'questions of law', it has a further 5 items under the heading 'reasons for extending the appeal to the merits'. Many of the primary 16 items have sub-numbered items, for example item 3 'Ignoring relevant materials' has 41 sub-items; item 4 'ignoring statutory instruments' has 7 sub-items; and item 6 'error of law on the face of the record' refers to 35 paragraphs in the Tribunal's reasons where such an error is said to arise. There is an application for leave to extend to the merits.

1. In the notice of reply to the appeal, the agency stated that it had difficulty in understanding the grounds of appeal.

1. We agree with the agency's concern over the difficulty in understanding the grounds of appeal. As already noted, the appellant is a litigant in person from a non-English speaking background. His written submissions are detailed and expressed in English. At the hearing, he had the assistance of an Arabic interpreter, though for the most part he addressed the Appeal Panel directly, occasionally seeking the assistance of the interpreter.

1. In what follows we have sought to organise the points he raised into what we see as their essential components, without paying close attention to the distinction between questions of law and questions of fact.

(1) Challenges to Findings of Fact

1. A number of the points in the appellant's notice of appeal and his submissions challenge the factual findings of the Tribunal.

1. We have noted already that the hearing proceeded over four days. There was substantial affidavit material filed by both parties, and most of the deponents were called to be cross-examined.

1. An appellate body, such as the Appeal Panel, must be cautious in disturbing the findings of fact made by the primary tribunal, the more so when there has been a comprehensive hearing. We have reviewed the material considered by the Tribunal below. In our view, the Tribunal's reasons show that it had regard to all of the evidence that it heard. It is not required to summarise every aspect of that evidence or itemise and deal with all points of conflict or tension between particular aspects of the evidence.

1. In our view, it had a foundation in the evidence for the findings it made to the extent that they were required. It dealt closely with key matters of controversy such as whether the appellant could be said to have given a consent to the taking of the photographs and to the subsequent uses and disclosures that Mr Hughes made.

1. The law gives a wide protection to trial bodies against having their findings of fact disturbed. In our view, the Tribunal pursued an orthodox process in receiving, hearing and having tested the evidence in contest. It did not overlook any critical evidence, or make findings on the basis of no evidence or evidence that was not probative.

(2) The Tribunal's Account of the Evidence

1. The appellant disputes at many points the way the Tribunal has summarised the evidence, and the accuracy of its account of what particular witnesses said.

1. The Tribunal's reasons should be read as a whole. Reasons ordinarily condense significantly the body of evidence that was before the tribunal or court, and there is no need to refer to every contest or to make close comparisons with each of the points of difference within a contest. The Tribunal has a wide discretion as to how much of the evidence it recapitulates and analyses in its reasons. In our view, the Tribunal dealt clearly with the key disputes of fact. We are satisfied that the Tribunal dealt satisfactorily with the key task of explaining its thinking on the key contests.

(3) Scope of Complaints

1. KT criticises the Tribunal for misunderstanding the case that he was making, comparing the terms of his complaints with the issues canvassed by the Tribunal. He expresses concern that some of those issues were not raised by him.

1. In his written submissions he set out a table precisely repeating the text of the seven points in his original application (set out earlier in these reasons at [5]). He then presented a detailed table referring to the HPPs that were raised in the internal review report, the Tribunal's reasons and submissions, with a view, as we understood it, to demonstrating that the Tribunal had gone beyond the range of HPPs he had wished to put in issue, and arguably had not attended to some he saw as important.

1. Applications made to agencies for review of their conduct are often expressed in imprecise or unclear terms, and the agency is left to an extent to work out what it is that is alleged. The appellant simply set out his complaints without specifying precisely which HPPs he had in mind. This is quite usual.

1. It follows that the responsible officer in the agency, and later the Tribunal, must make a judgement about what principles might reasonably be seen as placed in issue by the subject matter of the complaint; and, in forming a view, have regard, if practical to do so, to the views of the complainant.

1. All privacy applications for review go through the planning meeting process of the information law list of the Tribunal. The appellant had, in our view, ample opportunity to put other HPPs in issue. By the time the planning meetings were being held in this matter, the appellant was already an experienced litigant in these issues in the Tribunal, having brought a number of cases similar to these in relation to other interactions between the agency and him.

1. In our view, the Tribunal informed itself appropriately, by reference to the original application for internal review, the internal review report, the planning meeting process and the material and submissions made at hearing in reaching a conclusion as to what issues were raised. It is true that some of the original complaints could be construed, as KT suggests, as confined, for example to use issues and not disclosure issues. We are not satisfied, in these circumstances, that the Tribunal failed to address the Principles put in issue by the application.

1. If the Tribunal exceeded the scope of the complaints, as is now asserted, no appellable error arises.

1. Many of the appellant's submissions draw attention to HPPs which he says the Tribunal should have applied to the facts. We are not satisfied that there was any omission to consider relevant HPPs.

1. Nonetheless, in the interests of bringing some resolution to the appellant's concern, we will deal briefly with some of his points. He refers first to HPP 1 which provides:

1 Purposes of collection of health information

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

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

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

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

1. He mounted a case in his appeal submissions that the activity of taking the photographs was not one related to the lawful purposes or functions of the agency. He referred to the principal functions of the umbrella agency, NSW Health, as set out in the Health Administration Act 1982. In our view, the taking of photographs by a manager of an employee injured in a fracas in the workplace is directly related to the ordinary functions of an employer in matters of this kind.

1. He criticised the Tribunal for not responding to his submission as to the procedures to be followed under the policy of the agency (Ex A10 below) as to the collection of personal and health information for transmission to the police. The policy does not bear on the interpretation to be given to the exception at HPP 10(1)(i) (the law enforcement exception). It is cast in broad terms, and any non-compliance with the agency policy (as alleged by the appellant), is not relevant to the question of whether the substance of the transaction fell within the exception. Similarly the policies that might apply to police in the conduct of forensic procedures are not relevant to the issue before the Tribunal in this case - the lawfulness or otherwise of the agency's collection, use and disclosure of the photographs. The Police Force is not a party to this case.

1. The submissions seek to reopen the Tribunal's conclusions in relation to the access and amendment complaints. In our view, the Tribunal's assessment of whether there was any delay that was excessive was a reasonable one. Similarly, the Tribunal explained clearly its conclusions in relation to the complaint implicating Ms Whalan's conduct.

(4) Other Matters

1. In rejecting evidence given in support of the appellant by his former wife and his daughter, the Tribunal formed the view that the affidavits did not give independent recollections of the events, and that they had been cut and pasted. The Tribunal expressed the opinion that the two witnesses had 'colluded' and their evidence was 'not truthful'. There was no direct reflection on the appellant, but he took objection to the conclusions in his notice of appeal.

1. This was a matter the Tribunal was best placed to assess. However, we think an express finding of collusion between witnesses should be avoided. We understand from a review of the reasons and the submissions that the issue was raised by counsel for the respondent, and that the witnesses were given an opportunity to answer the allegations. In our view, nonetheless it is preferable if findings of this gravity are avoided. It is usually sufficient simply to give reasons as to why evidence is not preferred without making additional findings that go to the integrity of the witness. See further Kuhl v Zurich Financial Services Aust Ltd [2011] HCA 11 at 67] ff per French CJ. If they are to be made, the Tribunal should perhaps engage in a satellite hearing that involves some form of notice to the affected persons, and an opportunity to respond.

Costs

1. The agency has made an application for its costs of the appeal. The general principle is that each party bears their own costs in the Tribunal. It is subject to the important qualification allowing the Tribunal to depart from the usual rule 'if it is fair to do so' having regard to a wide range of factors listed in the Act: see ADT Act, s 88.

1. The submissions refer to the Appeal Panel's award of costs against KT in another appeal involving the same respondent agency and having as its background the employment relationship between KT and the agency, like this case: KT v Sydney Local Health District (formerly Sydney Local Health Network) (No 2) (Costs) [2011] NSWADTAP 42.

1. In our opinion this appeal had no strength. The Tribunal below delivered a comprehensive decision after four days of hearing. It allowed the appellant's case in one respect, which itself was a minor aspect of his case as presented.

1. As has been said in other Appeal Panel rulings in costs, the ordinary rule of this Tribunal is that no costs awards should be made. We accept that the degree of rigour with which the rule is applied may differentiate between proceedings at first instance and appeals. A successful party at first instance should not lightly be exposed to a further round of litigation by way of an appeal. An appellant who has avoided a costs order at first instance should not expect that the same will follow on appeal. Much will depend on how reasonable the appeal was, whether the points that were taken were arguable, and whether the appeal was conducted in a concise and fair way. Appeals of the present kind, which essentially seek to reopen all aspects of the first instance proceedings (all adverse factual findings, all adverse rulings as to the applicability of the legal principles) should not be encouraged.

1. Our provisional view is that a costs order is justified. We have not as yet made a final decision.

1. We direct that submissions on this matter be made within 14 days by the appellant, and submissions in reply by the respondent in a further 7 days. The respondent is to indicate what amount is sought, and the basis for the calculation of that amount.

Order

1. Appeal dismissed.

2. Respondent's application for costs of the appeal: directions as per para [61].

Decision last updated: 31 October 2012