KT v Sydney Local Health Network

[2011] NSWADT 233

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	KT v Sydney Local Health Network [2011] NSWADT 233
Hearing dates:	20 April 2011 and 10 June 2011
Decision date:	06 October 2011
Jurisdiction:	General Division
Before:	P Molony, Judicial Member
Decision:	The Applicant shall pay the Respondent's costs of these proceedings, such costs, in default of agreement, to be assessed under Division 11 of Part 3.2 of the Legal Profession Act 2004 .
Catchwords:	Costs
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Privacy and Personal Information Protection Act 1998
Cases Cited:	Attorney-General (Victoria) v Wentworth (1988) 14 NSWLR 481 AT v Commissioner of Police, New South Wales Police Force (GD) [2009] NSWADTAP 1 AT v Commissioner of Police [2010] NSWCA 131 BE v University of Technology, Sydney (GD) [2009] NSWADTAP 22 Department of Education and Training v ZR (No 2) (GD) [2009] NSWADTAP 44 Jonamill Pty Ltd v Alramon Pty Ltd (No 2) [2010] NSWADTAP 3 KO & KP v Commissioner of Police, New South Wales Police [2005] NSWADT 18 KT v Sydney Local Health Network [2011] NSWADT 171 KT v Sydney South West Area Health Service [2010] NSWADT 131 KT Sydney South West Area Health Service [2010] NSWADT 102 KT v Sydney South West Area Health Services [2010] NSWADT 94 KT v South West Sydney Area Health Service [2010] NSWADT 227 PC v University of New South Wales (GD) (No 2) [2006] NSWADTAP 54 PN v Department of Education and Training (GD) [2010] NSWADTAP 59 QE and Anor v Macquarie University [2008] NSWADT 144 Rucom Pty Ltd and Anor v Multiplex & Ors [2010] NSWADT 1 Wilde v University of Sydney (EOD) [2004] NSWADTAP 32
Category:	Costs
Parties:	Applicant - KT Respondent - Sydney Local Health Network
Representation:	A Britt (respondent) Applicant in person GILD Insurance Litigation Pty Ltd (Respondent)
File Number(s):	103229

REasons for decision

Introduction

1. This decision concerns an application by the Sydney Local Health Network (the agency) that KT pay its costs in relation to a review of conduct under the Privacy and Personal Information Protection Act 1998 (the PPIP Act) made by KT. That review was determined adversely to KT: see KT v Sydney Local Health Network [2011] NSWADT 171.

1. KT opposes the making of a costs order in the circumstances and argues that the Tribunal has no power to award costs in a review of conduct under the PPIP Act.

The Tribunal's power to order costs

1. Section 88 of the Administrative Decisions Tribunal Act 1997 (the ADT Act) provides -

(1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section.

(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or

(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or

(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or

(iv) causing an adjournment, or

(v) attempting to deceive another party or the Tribunal, or

(vi) vexatiously conducting the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) any other matter that the Tribunal considers relevant.

(2) The Tribunal may:

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.

(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.

(4) In this section, costs includes:

(a) costs of or incidental to proceedings in the Tribunal, and

(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.

1. KT submits that a review of conduct by the Tribunal under s 55 of the PPIP Act is an application to the Tribunal for an "original proceeding" within the meaning of sub-section (4), and that the PPIP Act does not contain a provision allowing the Tribunal to award costs.

1. The Tribunal has jurisdiction to make original decisions and review reviewable decisions: see s 36(1) of the ADT Act. Section 37 confers original jurisdiction on the Tribunal -

The Tribunal has jurisdiction under an enactment to act as the primary decision-maker if the enactment provides that applications may be made to it for decisions made in the exercise of functions conferred or imposed on the Tribunal by or under that enactment .

Section 38 confers jurisdiction to review reviewable decisions. Relevantly, it provides -

(1) Conferral of review jurisdiction

The Tribunal has jurisdiction under an enactment to review a decision (or a class of decisions) if the enactment provides that applications may be made to it for a review of any such decision (or class of decisions) made by an administrator:

(a) in the exercise of functions conferred or imposed by or under the enactment, or

(b) in the exercise of any other functions of the administrator identified by the enactment.

Note. Section 5 defines enactment to mean:

(a) in relation to a reviewable decision-an Act (other than this Act) or a statutory rule (other than a statutory rule made under this Act), or

(b) in any other case-an Act (other than this Act).

...

(3) Preconditions for applications laid down by enactment

If an enactment makes provision for applications to be made to the Tribunal in respect of a reviewable decision subject to certain conditions, the Tribunal has jurisdiction under the enactment only if those conditions are satisfied.

1. Section 8 of the ADT Act defines reviewable decision. It provides -

(1) A reviewable decision is a decision of an administrator that the Tribunal has jurisdiction under an enactment to review.

(2) For the avoidance of doubt (and without limiting subsection (1) or section 6):

(a) the conduct of an administrator (or a refusal by an administrator to engage in conduct) is a reviewable decision if the Tribunal has jurisdiction under an enactment to review the conduct or refusal, and

(b) in its application to any such conduct or refusal by an administrator, any reference in this Act (however expressed) to an administrator making a reviewable decision includes a reference to an administrator engaging or refusing to engage in the conduct.

Note. Section 38 provides for the circumstances in which the Tribunal has jurisdiction to review a decision of an administrator.

The jurisdiction conferred on the Tribunal by section 55 of the Privacy and Personal Information Protection Act 1998 is an example of jurisdiction to review conduct.

1. Section 8 was inserted into the Act by the Administrative Decisions Tribunal Amendment Act 2008 and commenced on 1 January 2009. This "put beyond doubt" that " Privacy Act applications do belong to the review jurisdiction of the Tribunal": AT v Commissioner of Police, New South Wales Police Force (GD) [2009] NSWADTAP 1 at [7]. As a consequence KT's submission, that in conducting a review of conduct under the PPIP Act the Tribunal is making an original decision, must fail.

1. Section 40 of the ADT Act is concerned with what happens when an enactment conferring jurisdiction on the Tribunal contains provisions which are contrary to those which apply to the proceedings under the ADT Act. It provides -

(1) The provisions of this Act have effect subject to any contrary provision being made in a relevant enactment (whether expressly or impliedly).

(2) However, a provision of a relevant enactment is not to be interpreted as amending or repealing, or otherwise altering or affecting the effect or operation of, any of the provisions of this Chapter unless the provision of the relevant enactment provides expressly for it to have effect despite a specified provision, or despite any provision, of this Chapter.

(3) This section applies to a provision of a relevant enactment whether enacted before or after the commencement of this section.

(4) In this section:

relevant enactment means an enactment under which the Tribunal has jurisdiction:

(a) to make an original decision, or

(b) to review a reviewable decision,

or that otherwise deals with the jurisdiction of the Tribunal.

1. The PPIP Act does not contain any provision concerning costs orders. As a consequence the costs provisions in s 88 of the ADT Act apply with respect to privacy matters: see also PC v University of New South Wales (GD) (No 2) [2006] NSWADTAP 54; BE v University of Technology, Sydney (GD) [2009] NSWADTAP 22; QE and Anor v Macquarie University [2008] NSWADT 144; and AT v Commissioner of Police [2010] NSWCA 131 .

Should a costs order be made?

1. In AT v Commissioner of Police [2010] NSWCA 131 the Court of Appeal considered the power to award costs in the context of a review of conduct under the PPIP Act. Basten JA delivering the judgment of the Court said at [33] -

Although an order varying the general rule may be made "only if" the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order. The criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. The circumstances in which fairness may be identified are indicated by the specific attributes listed in sub-s (1A), but subject to the generality of paragraph (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b)-(g) of the Tribunal Act .

1. In making its application for costs the agency relied on:

• S 88(1A)(a)(i) - " failing to comply with an order or direction of the Tribunal without reasonable excuse." The agency in support of this submission relied on my decision on the substantive application ( KT v Sydney Local Health Network [2011] NSWADT 171). It submitted that -

... the Tribunal ... found that the Applicant sought to expand the nature of his case despite advice from the member at [15-16]; sought to lead a substantial body of evidence going to issues outside the scope of the review: much of which was struck out on the application of the agency and throughout the hearing KT persistently sought to cross-examine on matters which had been ruled irrelevant at [17] and the Applicant's refusal to comply with rulings as to relevance substantially lengthened the hearing at [18].

• S 88(1A)(b) - " whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings." In support of this the agency referred to the matters quoted above and the submitted that -

... the Applicant's refusal to comply with rulings as to relevance substantially lengthened the hearing at [18]; the hearing of this review application took one and half days and it would ordinarily have been completed in half a day and the Applicant's refusal to comply with rulings as to relevance substantially lengthened the hearing at [18].

• S 88(1A)(a)(vi) - " vexatiously conducting the proceedings." The agency submitted that KT's application was lacking in substance and added -

However, when the substance of the Applicant's application is considered along with the following matters such as: (a) the conduct of the hearing by the Applicant; (b) the unnintelligible submissions of the Applicant; (c) the ignoring of clear authorities that were contrary to the Applicant; (d) constant bias applications; (e) the Applicant's persistent attempts to introduce, rely on, and cross-examine about matters, which fell outside the scope of the review; (f) the Applicant seeking to expand the nature of his case; (g) the Applicant seeking to lead a substantial body of evidence going to issues outside the scope of the review and conduct a similar cross examination; (h) the Applicant's attempts to turn the proceedings into a forum for his employment and industrial issues and in so doing rehash matters determined elsewhere; and (i) in respect to the Applicant's items 7 and 8 they had been dealt with in an earlier review and they could not be the subject of a subsequent review.

In such circumstances it is clear that the Applicant's claim is vexatious for the purposes of s88(lA)(a)(vi).

• S 88(IA)(c) - " the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law." The agency relied on this with respect to items 7 and 8, which I found could not be the subject of a fresh internal review in circumstances where they had already been review and determined, with no review by the Tribunal sought. The agency relied on the decision of Molloy JM in Rucom Pty Ltd and Anor v Multiplex & Ors [2010] NSWADT 1 concerning the need for a party in to ensure they have a case before commencing proceedings. That was a decision in the Retail leases Division.
• S 88(1A)(e) - " any other matter that the Tribunal considers relevant." The agency relied on all the other matters set out above in support of this ground but also submitted that KT -

29... , the Applicant has become a serial litigant who commences proceedings with little or no thought or understanding of the issues or legal questions involved.

30. ... the Applicant pursues matters so as to raise other matters and make baseless and unsupported allegations against the Respondent and its employees...

31. ... the Applicant makes constant applications for the member to disqualify himself usually after a ruling which is adverse to the Applicant's perceived interests;

32. ... the Applicant has now commenced to make baseless allegations against the member of the Tribunal in what appears to be an attempt to bully the Tribunal.

33. A public interest is served in discouraging such an approach to litigation.

1. In his submission KT argued that:

Delays in bringing the hearing to a speedy conclusion were the result of illness on my part.

The prolongation of the hearing was the result of the agency's conduct. He submitted that the hearing could have been brought to a conclusion at the end of the first day if the agency had indicated it would not be relying on the affidavit of Ms Roberts. The agency's representative " was interfering my cross examination to his witness, and make comments and submission in front of her witness."

• He had complied with all directions and orders.
• The agency's representatives had spent three and a half hours cross-examining him, but constantly interrupted his cross-examination of Ms Mills.
• That the Tribunal had not advised him of the need to address relevant material.
• His application had not been dismissed as vexatious.
• " If the Tribunal can not find if the case has no tenable basis in law or fact, why Tribunal accepted the application, it conferred on ADT under s.53 of PPIPA."
• The agency had failed to comply with the Tribunal's Practice Note No 22 "Cost Guideline" in that it had failed to file and serve " a precise statement of the amount of costs actually sought and its components" and had sought costs after the reasons for decision had been published.
• There were no "special circumstances" meriting an order for costs.

Consideration

1. The agency relied on a number of other decisions of the Tribunal dealing with the discretion to order costs. These included Rucom Pty Ltd and Anor v Multiplex & Ors [2010] NSWADT 1 and Jonamill Pty Ltd v Alramon Pty Ltd (No 2) [2010] NSWADTAP 3. Those decisions were made in the retail leases division of the Tribunal. Proceedings in the retail leases division are applications for original decisions as between individuals, not reviews of the conduct or decisions of government agencies. Retail lease proceedings have a commercial flavour to them which is not found in review proceedings under the PPIP Act. As a result, while the discussion of the law relating to the exercise of the Tribunal's discretion to award costs in retail lease proceedings provide guidance, it should be recognised that they are made in the context of a commercial dispute.

1. The primary position remains that stated by s 88(1) of the ADT Act, that each party is to bear their own costs unless considerations of fairness require a departure from that position. KT's submission that "special circumstances" are required before an order for costs can be made do not apply in the present circumstance. The "special circumstance" provisions in s 88 were repealed in 2008 when s 88 in its present form was introduced.

1. In the present case KT was self -represented. He does not have the level of knowledge or skill in matters of law and procedure which one would expect for a legal representative. He is not, however, a novice in reviews under the PPIP Act having previously made a number of similar applications.

1. In my opinion KT by his conduct of the proceedings did protract them significantly. I found at paragraph [14] and [17] of the decision that -

14. The hearing of this review application took one and half days. It is a matter that would ordinarily have been completed in half a day. The proceeding was protracted by KT's persistent attempts to introduce, rely on, and cross-examine about matters, which fell outside the scope of the review.

...

17. ... KT sought to lead a substantial body of evidence going to issues outside the scope of the review: much of which was struck out on the application of the agency. Throughout the hearing KT persistently sought to cross-examine on matters which I had ruled irrelevant. His refusal to comply with my rulings as to relevance substantially lengthened the hearing.

1. I remain of that view. KT persisted with matters which had been ruled irrelevant. By doing so he substantially protracted the hearing.

1. Further, given the decisions of the Tribunal in KO & KP v Commissioner of Police, New South Wales Police [2005] NSWADT 18 and Department of Education and Training v ZR (No 2) (GD) [2009] NSWADTAP 44 KT's attempts to extend the ambit of the external review were always untenable and bound to fail. His persistence with those issues required the agency to consider, address and respond to them, with the attendant wasted cost of doing that work. All of this conduct brings into play the considerations in s 88(1A)(a)(i) and (b).

1. KT argues that the hearing was protracted by a number of other factors: my illness and the conduct of the agency's representative. My illness resulted in the second day scheduled for the hearing being vacated, and another date fixed: rather than the hearing itself being protracted. The interruptions by Counsel for the agency that KT complains of were, for the most part, proper objections to evidence which KT sought to lead or to questions he asked.

1. I agree with the agency's submission that KT's review with respect to points 7 and 8 was bound to fail from the start. As the issues they raised had previously been the subject of a previous internal review, that had not been externally reviewed, those issues were plainly at end. Making a later internal review request with respect to those matters, and then prosecuting them through an external review process, was an exercise in futility from the start. This did not require any specialist knowledge to understand. It is a matter which was obvious (especially given the fact that the second internal review decision was determined on the basis that the issues had already been decided). KT's conduct in persisting with this part of application brings into consideration s 88(1A)(c). KT argued that s 88(1A)(c) had no application where only part of the proceedings had no tenable basis. I reject that submission. It was open to KT to withdraw his review application with respect to points 7 and 8 at any time, and to proceed with the balance. By not doing so he required the agency to deal with those issues and the Tribunal to consider them.

1. The balance of KT's claim was dubious at best. He always faced the obstacle that the use and disclosure he complained of had been in connection with the defence of proceedings he had brought under the Freedom of Information Act . The issue was whether the FOI Act reasonably contemplated the resultant disclosure of his personal information. I concluded that the FOI Act did contemplate such a disclosure: a conclusion that was predictable.

1. KT also advanced a series of other arguments which I found it unnecessary to consider, given that conclusion. He filed and relied on a large volume of irrelevant material and made submissions going to issues beyond the scope of the internal review, all of which had to be considered by the agency and consumed time in the hearing.

1. The agency points to the outcome of the proceedings, the lack of merit in KT's application, and KT's conduct throughout the proceedings as justifying a conclusion that KT conducted them vexatiously. In Wilde v University of Sydney (EOD) [2004] NSWADTAP 32 at [10] the Appeal Panel said -

We agree with the Tribunal's comments in the costs decision relating to the primary proceedings that vexatious conduct involves bringing proceedings with the intention of harassing the other party or with the intention of wasting time or causing delay ( Wilde v University of Sydney (No.2) [2004] NSWADT 16 [27]). In our view the appellant has not brought this appeal with such an intention.

1. In Attorney-General (Victoria) v Wentworth (1988) 14 NSWLR 481 Roden J considered, among other things, the circumstances in which a litigant could be regarded as having instituted vexatious proceedings for the purposes of the then s 84 of the Supreme Court Act 1970 . It was held, at 491 that -

It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:

1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.

3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.

4. In order to fall within the terms of s 84:

(a) proceedings in categories 1 and 2 must also be instituted without reasonable ground (proceedings in category 3 necessarily satisfy that requirement);

(b) the proceedings must have been "habitually and persistently" instituted by the litigant.

1. There the Court was considering legislation relating to persons who persistently institute vexatious proceedings. In s 88(1A)(a)(v) of Administrative Decisions Tribunal Act 1997 the legislation refers to a party "vexatiously conducting proceedings." The word "conducting" has a wider meaning than "instituting"; connoting not only the institution of proceedings, but the manner in which the proceedings are pursued, prosecuted or executed.

1. In the present case I am satisfied that KT did conduct the proceeding vexatiously. With respect to part of the proceedings (points 6 and 7) he was bound to fail. The balance of the proceedings held only a minimal prospect of success in the light of the authorities concerning s 25 of the PPIP Act, especially PN v Department of Education and Training (GD) [2010] NSWADTAP 59. Moreover, KT persistently sought to use the proceedings to ventilate issues beyond the scope of the Tribunal's review, which issues have their genesis in a past employment dispute he had with the agency.

1. KT has persistently attempted to use both the Freedom of Information Act 1989 and the PPIP Act as a means to enable him to demonstrate that he suffered an injustice as an employee of the agency: see the following decisions relating to proceedings under the PPIP Act which illustrate his determination - KT v Sydney South West Area Health Service [2010] NSWADT 131; KT Sydney South West Area Health Service [2010] NSWADT 102; KT v Sydney South West Area Health Services [2010] NSWADT 94; and KT v South West Sydney Area Health Service [2010] NSWADT 227. It is not possible to cite the related proceedings under the FOI Act without disclosing KT's identity. Those proceedings are not the only proceeding between the parties. There have been a number of reported decisions relating to the employment issues in the Industrial Relations Commission, which ultimately were appealed (unsuccessfully) to the Court of Appeal: decisions of the Government and Related Employees Tribunal dealing with the same issue; a private prosecution brought by KT against employees of the agency in the Local Court for breaches of the PIPA Act - which were appealed successfully on a point of law by KT; and a series of appeals from the first instance decisions of this Tribunal, some of which have now made their way to the Court of Appeal.

1. In the proceedings now under consideration KT again sought to broaden the scope of the review by presenting irrelevant material and asking irrelevant questions in pursuit of his collateral object of addressing what he sees as injustices he has suffered at the hands of the agency and its staff. In dong so he protracted proceedings which had only a small chance of success, and put the agency to resulting expense and difficulty. In doing so KT displayed a dogged persistence which it was not possible to fully restrain.

1. In the circumstances I think it fair that KT pay the agency's costs of the review. Those costs, if not agreed, should be assessed under Division 11 of Part 3.2 of the Legal Profession Act 2004 .

1. Mention should be made of KT's submissions relating to the agency's non-compliance with the Tribunal' Costs Guideline, in that it did not present a detailed list of its expenses at the conclusion of the hearing. In this KT is correct. While it would have been desirable for the agency to have done so, the Guideline describes desired practice but does not have statutory force. Failure to comply with it does not result in a party not being entitled to seek an order for costs.

1. KT's submission that the agency should not be entitled to costs because they did not seek them until after the Tribunal's reasons for decision must be rejected. Both parties forecast at the end of the hearing that if they were successful they would be seeking an order for costs.

Conclusion

1. The Tribunal orders that the Applicant shall pay the Respondent's costs of these proceedings, such cost, in default of agreement, to be assessed under Division 11 of Part 3.2 of the Legal Profession Act 2004 .

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Decision last updated: 06 October 2011