KT v Sydney Local Health Service (formerly Sydney South West Area Health Service)(No 2)
[2012] NSWADT 252
•03 December 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: KT v Sydney Local Health Service (formerly Sydney South West Area Health Service)(No 2) [2012] NSWADT 252 Hearing dates: On the papers Decision date: 03 December 2012 Jurisdiction: General Division Before: S Higgins, Deputy President Decision: The applicant's application for costs for the planning meeting on 20 October 2009 is refused.
Catchwords: Costs Legislation Cited: Administrative Decisions Tribunal Act 1997
Health Records and Information Privacy Act 2002
Privacy and Personal Information Protection Act 1998Cases Cited: AT v NSW Police [2010] NSWCA 131
KT v Sydney Local Health District (formerly Sydney South West Area Health Service) (No. 2) (Costs) [2011] NSWADTAP 42
KT v Sydney Local Health Network (formerly
Sydney South West Area Health Service) (GD) [2011] NSWADTAP 10.
KT v South West Sydney Area Health Service [2010] 227Category: Costs Parties: KT (Applicant)
Sydney Local Health Service (Respondent)Representation: KT (Applicant in person)
No appearance (Respondent)
File Number(s): 093255
REASONS FOR DECISION
On 25 September 2009, KT made an application to the Tribunal seeking review of conduct of the Sydney Local Health Service (Sydney South West Area Health Service), which he asserted was a breach of an information protection principle (IPP) under the Privacy and Personal Information Protection Act 1998 and/or a health privacy principle (HPP) under the Health Records and Information Privacy Act 2002, in regard to his personal or health information.
On 14 September 2010, Judicial Member Molony determined KT's application by making an order not to take any further action with respect to the matter the subject of KT's application: see KT v South West Sydney Area Health Service [2010] 227. KT appealed this decision to the Appeal Panel.
On 18 March 2011, the Appeal Panel dismissed KT's appeal and made orders in regard to any cost application the parties sought to make: see KT v Sydney Local Health Network (formerly Sydney South West Area Health Service) (GD) [2011] NSWADTAP 10.
On 28 September 2011, the Appeal Panel (constituted by the President alone), determined the parties costs application in relation to the appeal: see KT v Sydney Local Health District (formerly Sydney South West Area Health Service) (No. 2) (Costs) [2011] NSWADTAP 42. In that decision, His Honour made an order that KT's 'application for costs in respect of the planning meeting held 20 October 2009 before the General Division is remitted to the Tribunal below, to be constituted for this purpose by Deputy President Higgins.'
On 23 March 2012, at my direction, the Registrar wrote to the parties informing them of the directions I had made, in chambers, for the filing and serving evidence and written submission in regard to KT's application for costs for 20 October 2010 and that I made an order that KT's application for costs was to be determined on the papers pursuant to section 76 of the Administrative Decisions Tribunal Act 1997 (the ADT Act). In accordance with my directions, KT filed and served his submissions on costs. The respondent did not file any submissions in reply.
For the reasons set out below I have determined to refuse the applicant's application for costs.
Background to KT's application for costs
Following the lodgement of KT's application, it came before me at the initial planning meeting, on 20 October 2009, at 9:30am. Planning meetings of this nature are usually listed for ¾ to 1 hour.
On this day there was no appearance by the respondent, even though the Registry had, on 28 September 2009, given the respondent written notice of KT's application and the date and time it had been set down for a planning meeting. In light of the non-appearance of the respondent, KT made an application for his costs for the day. I reserved my decision on that application and made an order for a further planning meeting on 4 November 2009 and that the Registrar to write to the respondent informing it of the orders I hade made.
On 4 November 2009, Ms Wooley, solicitor, appeared on behalf of the respondent. KT was also in attendance. On this day I directed the Registry to allocate this application, together with other applications of KT that had been allocated to me, to another Tribunal Member for determination. My reasons for doing so are no longer of any relevance.
Relevant Law
The Tribunal's power to award costs is set out in section 88 of the ADT Act. It provides as follows:
88 Costs
(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
KT's application was not an application seeking an original decision: see section 37 of the ADT Act. It was an application in the Tribunal's review jurisdiction: see section 38 of the ADT Act. Accordingly, subsection 88(3) does not apply to this application.
As can be seen from the terms of subsection 88(1), the general rule is that each party pay its own costs of the proceedings. However, the Tribunal does have power (i.e. a discretionary power) to award costs if it is satisfied that it is fair to do so, having regard to the matters set out in subsection 88(1A). Section 88 applies to first instance proceedings before the Tribunal and appeals before the Appeal Panel of the Tribunal.
In AT v NSW Police [2010] NSWCA 131, the Court of Appeal considered the application of section 88 of the ADT Act. At [33], the Court reiterated that an order varying the general rule that each party pay its own costs 'may be made "only if" the relevant criterion' in subsection 88(1A) is satisfied. It went on to state that 'there is a relatively low hurdle for an applicant seeking an order' under section 88. The Court also said 'the criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party.'
The applicant's claim for costs
As I have explained, KT's application for costs relates to his costs for 20 October 2009. KT claims that his lost costs for the day were $164.00 in total. This amount was made up as follows:
(a) Transport and parking $25.00 + $4.00 - these costs were based on KT using his car to travel into the city and back and also for the cost of parking. In support of his claim KT provided a copy of a page from a street directory that identifies the distance from his home to the city. He has used this distance to calculate his cost on the basis of 55 cents per klm. He said he lost his parking ticket.
(b) Out of pocket $10.00 - I am unsure as to what this costs relates to.
(c) Post $4.70 - this is the cost KT incurred in posting his written submissions in this application to the respondent. He has provided a copy of the receipt for this. That receipt is for an amount of $3.70 and not $4.70.
(d) Other expenses $120.00 - this is the cost KT says he was required to pay a carer to look after his daughter on the day in question - KT has provided a receipt. However, I am unable to read what it says as it is in another language - I assume Arabic.
In his submissions, KT said that the respondent's failure to attend the planning meeting not only affected him financially, it was also disrespectful of him as an unrepresented litigant.
In my view, the applicant's application for costs was appropriately made in that the respondent had adequate notice of the planning meeting. It was the first planning meeting and as a result of the non-attendance of the respondent the application could not be progressed and was adjourned to another day. Accordingly, prima facie, there is a basis for the making of the application.
However, other than his cost for postage, I am not satisfied that the applicant has provided sufficient material to support his claim in regard to the other amounts. For example, KT has not identified the vehicle he alleges he drove into the city that day, or that it was his vehicle. As I have already explained, the receipt in respect of a carer for his daughter cannot be understood and I do not understand the nature of his out of pocket expenses.
As the amount for postage is so small and they are costs incurred by KT subsequent to the day in question, in my view it is not appropriate to make the order sought.
Accordingly, the appropriate order is to refuse KT's application for costs for the planning meeting on 20 October 2009.
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Decision last updated: 04 December 2012
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