KT v Sydney South West Area Health Service

[2010] NSWADT 102

CITATION:	KT v Sydney South West Area Health Service [2010] NSWADT 102
DIVISION:	General Division
PARTIES:	APPLICANT KT RESPONDENT Sydney South West Area Health Service
FILE NUMBER:	083367
HEARING DATES:	22 January 2010, 12 February 2010.
SUBMISSIONS CLOSED:	26 February 2010
EXTEMPORE DECISION DATE:	12 February 2010
BEFORE:	Molony P - Judicial Member
CATCHWORDS:	costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Health Records and Privacy Information Act 2002 Privacy and Personal Information Protection Act 1998
CASES CITED:	B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 5) (RD) [2010] NSWADTAP 21 Education and Training v ZR (No 2) (GD) [2009] NSWADTAP 44 JA v State of New South Wales [2003] NSWADT 272 Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD) [2010] NSWADTAP 3 KO & KP v Commissioner of Police, New South Wales Police [2005] NSWADT 18 Vice Chancellor Macquarie University v FM [2005] NSWCA 192
REPRESENTATION:	APPLICANT In person RESPONDENT A Britt, barrister
ORDERS:	1The Tribunal orders KT to pay half the Respondent’s costs of this proceeding incurred up to and including 12 August 2009, such cost, in default of agreement, to be assessed 2The Tribunal orders KT to pay the Respondent’s costs of this proceeding incurred after 12 August 2009, such cost, in default of agreement, to be assessed.

REASONS FOR DECISION

Background

1 This decision concerns a review of conduct under the Privacy and Personal Information Protection Act 1998 (PIPPA) and the Health Records and Privacy Information Act 2002 (HRIPA) by the Sydney South West Area Health Service (SSWAHS), on the application of KT.

2 On 12 February 2010 I delivered an extempore decision in the matter, which I had heard on 22 January 2010.

3 Essentially, KT’s complaints within jurisdiction were twofold. First, that the SSWAHS, in the person of Dr Nossar, had disclosed health information relating to KT to Dr Bawendry, without his consent and in breach of HPP 11. Secondly, that the SSWAHS, in the person of Mr Harding, had disclosed personal and/or health information relating to KT to an insurance investigator by making a statement to the investigator in relation to a workers compensation claim made by KT.

4 KT also filed material relating to, sought to lead evidence about and make submission on a large number of issues which were not within the scope of the Tribunal’s review: this was so because they had not been subject of the internal review, or were otherwise irrelevant.

5 The application for review was originally made to the Tribunal on 15 December 2008. Planning Meetings, at which directions were made for the filing of evidence and submissions, were listed before Higgins JM on 1 May 2009 and 12 August 2009. A directions hearing was held on 24 August 2009 at which the matter was then fixed for hearing on 9 October 2009. That hearing was vacated when Higgins JM recused herself from hearing the matter.

6 The matter was then listed for a Planning Meeting before me, on 1 December 2009, at which the parties advised that it was ready for hearing and that they wished to proceed. I listed it for hearing on 22 January 2010. That hearing proceeded and took a full day. At the conclusion of the hearing I listed it for decision on 12 February 2010.

7 At the hearing KT was assisted by an interpreter. He had not required that assistance in planning meetings as Higgins JM had noted at the first planning meeting. KT has a strong accent and I found it difficult to understand him in the environment of a large hearing room. The interpreter’s principal function during the hearing was making clear what KT said. KT rarely sought the assistance of the interpreter in understanding what was said to him.

8 When I came to deliver my decision an interpreter was not present. Discussion ensued as to whether I should proceed to deliver the decision. KT indicted that he was content for me to do so, so I proceeded.

9 Put shortly, I found that Dr Nossar had disclosed health information with respect to KT by writing to Dr Bawendry, with KT’s consent. I rejected as untruthful KT’s evidence to the contrary and found a number of allegations KT had made during the hearing with respect to Dr Nossar were unsupported and false.

10 With respect to the alleged disclosure by Mr Harding I found that the information he disclosed was not health information or personal information, as it was information held in Mr Harding’s mind alone, and not recorded in any form in material held by the SSWAHS. In so finding, I followed the decision of the Court of Appeal in Vice Chancellor Macquarie University v FM [2005] NSWCA 192.

11 I therefore determined to take no action on the review of conduct. As a result, KT was entirely unsuccessful.

12 The SSWAHS then sought an order for costs. Mr Britt who appeared for the SSWAHS made short oral submissions and provided the Tribunal with written submissions on the costs issue. Because KT was without an interpreter I gave him 14 days in which to make submissions in reply.

13 This decision relates to the determination of the costs issue

Legislation

14 Section 88 of the Administrative Decisions Tribunal Act 1997 (ADTA) provides the general rule is that parties are to bear their own costs of proceedings. The Tribunal has the discretion to award costs if it is fair to do so having regard to the factors set out in sub-section (1A). Those factors are:

“(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.”

15 The operation of s 88 has been recently considered by Appeal Panels in B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 5) (RD) [2010] NSWADTAP 21 and Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD) [2010] NSWADTAP 3

16 In seeking an order for costs the SSWAHS relied on the factors set out in s 88(1A)(a)(vi) “vexatiously conducting the proceedings,” s 88(1A)(c) “the relative strength of the claims made by the parties,” s 88(1A)(e) “any other matter that the Tribunal considers relevant”.

The SSWAHS’ Submissions

17 At the heart of the SSWAHS’ submissions are a number circumstances which it says make it fair that it be awarded costs of the proceedings have regard to the factors in s 88(1A).

18 The first of these are the extensive materials which KT filed and relied on in support of matters he sought to argue that were not within the scope of the internal review, and, therefore, not matters which the Tribunal had jurisdiction to determine on external review. By way of example KT filed and made submissions going to the collection of health information by the SSWAHS and its accuracy, the collection of information by WorkCover related agencies, and in relation to a barring order made against him by the SSWAHS. None of these were within the scope of the internal review. I found the material concerned to be “not relevant.”

19 Because these complaints were not within jurisdiction the SSWAHS submitted, “they must be frivolous vexatious or otherwise lacking in substance.”

20 In JA v State of New South Wales [2003] NSWADT 272 at [13] the Tribunal said:

The term "vexatious" has been interpreted by Professor Bernard Cairns in Australian Civil Procedure (5th edition, Law Book Co, 2002) as an allegation for the purpose of harassment. Cairns says, at 404-that "A pleading is therefore vexatious if it cannot succeed, or is put forward simply for the purpose of wasting time or for causing delay." (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91; Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937.) If an action has any hope of success it should not be struck out as vexatious. (Rajski v Powell (1987) 11 NSWLR 522.)

21 Secondly, the SSWAHS said that the two issues agitated during the course of the hearing had no tenable basis in fact or law on the evidence available to KT, bringing into play the operation of the factor in s 88(1A)(c).

22 Thirdly, submitted that those two issues were so untenable that they were “manifestly groundless.” As such it submitted they could be properly regarded as vexatious.

23 In addition, the SSWAHS submitted that “when the substance of the Application is considered along with the following matters such as the conduct of the hearing on behalf of the Applicant, the unintelligible submissions of the Applicant and the ignoring of clear authorities that were contrary to the Applicant's position …the claim was vexatious for the purposes of s88(1A)(a)(vi).”

24 The SSWAHS pointed to my rejection of KT’s evidence with respect the circumstances surrounding Dr Nossar’s letter to Dr Bawendry, and my finding that his allegations against the doctor were unsupported and false as being a relevant matter which the Tribunal can take into account under s 88(1A)(e), when considering whether it fair to make a costs order. It also pointed to the large volume of irrelevant material which KT had filed as being a relevant matter which the Tribunal can take into account under s 88(1A)(e) when considering whether it fair to make a costs order.

KT’s Submissions

25 In his submissions KT made the point that he is not a legal practitioner.

26 Throughout his submissions KT made a series of allegations addressed to the conduct of the SSWAHS’ counsel, Mr Britt. These include that he has delayed the proceedings in order to go overseas, and that the application for costs is an attempt to intimidate KT with respect to other proceedings, and a “reprisal” for a complaint KT has made about Mr Britt. These are very serious allegations. On the material available to me they are unfounded.

27 KT said that he had not been responsible for any delay in the proceedings.

28 Next KT argued that the Tribunal’s power to award costs under the HRIPA is limited by s 55 of that Act, which makes specific provision that each party to proceedings is to pay his or her own costs. As a result, he submitted, s 88(3) of the ADTA provides that the Tribunal may not make an order for costs in these proceedings. Section 88(3) provides:

“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.”

29 KT argued that by submitting the matter to a hearing the Tribunal had implicitly found that his case was arguable and not vexatious. If it was vexatious, he submitted, it should have been dismissed at a Planning Meeting. Similarly, he said, that by conducting the internal review the SSWAHS had accepted that his complaint was not vexatious.

30 KT submitted that my extempore decision contained errors of law which he did not identify. He then asked a series of questions relating to matters which I had found the Tribunal had no jurisdiction to determine as they were outside the scope of the internal review.

Consideration

31 KT is correct in his submission that s 88(3) of the ADTA when read with s 55 of the HRIPA operates to provide that each party is to pay their own costs, and to remove the discretion for the Tribunal to make an order for costs on the basis of fairness under s 88(1A) in proceedings to which s 55 applies.

32 Section 55, however, applies to costs orders with respect to inquiries conducted by the Tribunal under s 49 into the conduct of private sector persons, which have been the subject of a complaint to and report by the Privacy Commissioner. Those proceedings are original proceedings. The proceedings presently under consideration are review proceedings relating to the conduct of a public sector agency to which the review provisions of Part 5 of the PIPPA applies. Neither s 88(3) of the ADTA nor s 55 of HRIPA has any application to the present proceedings.

33 The Tribunal therefore does have the discretion to award costs when it is fair to do so having regard to the factors set out s 88(1A).

34 In exercising that discretion the fact that KT is not legally qualified and was representing himself is a relevant factor to be taken into account under s 88(1A)(e). In saying that, it needs to be acknowledged that KT is not a novice in this jurisdiction, having a brought number of other reviews to the Tribunal.

35 It is apparent from an examination of KT’s application, and of the materials and submission he filed in support, that he repeatedly sought to extend the ambit of his application beyond that which was the subject of the internal review. Given the decisions of the Tribunal in KO & KP v Commissioner of Police, New South Wales Police [2005] NSWADT 18 and Department ofEducation and Training v ZR (No 2) (GD) [2009] NSWADTAP 44, his attempts to extend the ambit of the external review were always untenable and bound to fail. His persistence with those issues required the SSWAHS to consider, address and respond to them, with the attendant wasted cost of doing that work.

36 With respect to the complaint about Dr Nossar’s conduct there was clear evidence, disclosed in affidavit evidence filed by the SSWAHS, which pointed to KT’s version of the events in issue being untenable. This was not only Dr Nossar’s statement. It included a WorkCover medical certificate signed by KT, in which he named both Dr Nossar and Dr Bawendry as his treating doctors, and the letter by which Dr Nossar disclosed the information in issue. That letter said KT had consulted him. These flew in the face of KT’s evidence that he had not consulted Dr Nossar. In my view, an objective assessment of this evidence should have alerted KT to the fact that his allegations were untenable. Nonetheless, he proceeded with the complaint, which had no basis in fact or law. Additionally, in the hearing, he went further and made unsupported and false allegations against Dr Nossar. I agree with the SSWAHS that this is a relevant matter the Tribunal can take into account under s 88(1A)(e).

37 With respect to the complaint about Mr Harding there was evidence, disclosed in both the internal review and in Mr Harding’s affidavit, that pointed to KT’s complaint being untenable. This was a consent KT had signed authorising his employer to disclose information for workers compensation purposes (including use by the insurer) which was referred to in the internal review, and Mr Harding’s assertion in his affidavit that he had never recorded the information in issue in any form. Both pieces of evidence posed enormous problems for KT’s claim, and without evidence contradicting them, on an objective assessment, his claim was bound to fail.

38 KT did not adduce evidence contradicting them. The result was that I found the information Mr Harding conveyed to the insurance investigator was held in his mind, and therefore was not personal or health information. It was not necessary to reach the point of considering the consent issue.

39 The fact that KT claims with respect to these issues were untenable is a factor which I can take into account in determining whether it fair to exercise the discretion to order KT to pay costs.

40 I regard all KT’s claims as untenable. With respect to the claims which went beyond the scope of the internal review this was clear from the start. I accept that the pursuit of those claims was vexatious.

41 With respect to the balance of his claims, despite the fact that KT is not legally qualified, I consider that that it should have been abundantly clear to him that they were untenable, once he considered the SSWAHS’ affidavit evidence filed on 27 July 2009.

42 A reasonable and objective assessment of KT’s case should have led him to withdraw his application at the Planning Meeting before Higgins JM on 12 August 2009. My view is that KT was so enmeshed in the dispute that he was unable to undertake such an assessment. This is a danger for litigants in person, but does not excuse or ameliorate the unfairness to the SSWAHS in proceeding with a claim that was untenable. Litigants in person who pursue applications in the Tribunal that are extremely weak or not tenable should be aware that they may be exposing themselves to an order for costs under s 88.

43 By proceeding with the claim from then on, KT put the SSWAHS to the cost of defending proceedings which were destined to failure. I do not think it fair that the SSWAHS be required to pay the costs of defending proceedings that were untenable.

44 In KT’s prosecution of the claim he filed 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 SSWAHS. In the hearing he repeatedly persisted in trying to press these issues, despite my having ruled them irrelevant and outside the scope of the Tribunal’s review. These are all a relevant factor under s 88(1A)(e). His conduct of the proceedings had the effect of increasing their complexity and difficulty.

45 In my view all these factors point to it being fair to order KT to pay or contribute to the SSWAHS’ costs.

46 I have concluded that it is fair to order KT to pay the SSWAHS’ costs incurred after the 12 August 2009. By that time I consider the application should have been withdrawn Before then I accept that, in a small part only, KT’s claim was marginally arguable.

47 With respect to the period up to 12 August 2009, KT was pressing some claims which that were vexatious and others which were, at that time, marginally arguable at best. I think it fair, having regard to the factors in s 88(1A) that KT pay half the SSWAHS' cost incurred in that period.

Conclusion

48 The Tribunal orders KT to pay half the Respondent’s costs of this proceeding incurred up to and including 12 August 2009, such cost, in default of agreement, to be assessed.

49 The Tribunal orders KT to pay the Respondent’s costs of this proceeding incurred after 12 August 2009, such cost, in default of agreement, to be assessed.