KT v Sydney South West Area Health Service (GD)

[2010] NSWADTAP 60

Appeal Panel - Internal

CITATION:	KT v Sydney South West Area Health Service (GD) [2010] NSWADTAP 60
PARTIES:	APPELLANT KT RESPONDENT Sydney South West Area Health Service
FILE NUMBER:	109025, 109028, 109029
HEARING DATES:	19 July 2010
SUBMISSIONS CLOSED:	19 July 2010
DATE OF DECISION:	2 September 2010
BEFORE:	O'Connor K - DCJ (President); Isenberg N - Judicial Member; LeBreton J - Non-Judicial Member
CATCHWORDS:	PRIVACY – Workplace doctor’s letter of referral to complainant’s general practitioner – Whether personal information disclosed without consent – Tribunal held no contravention – Appeal – Order as to costs – Appeal – Both appeals dismissed - PRIVACY – Request by complainant for access to witness statements connected with disciplinary investigation – Whether “excessive delay” in dealing with request – Tribunal held no contravention – Appeal dismissed – Privacy and Personal Information Protection Act 1998, s 14
DECISION UNDER APPEAL:	Ex tempore - 12 February 2010 (file no 083367; AP file no 109025); KT v Sydney South West Area Health Service [2010] NSWADT 102 (file no 083367; AP file no 109029); KT v Sydney South West Area Health Services [2010] NSWADT 94 (file no 093096; AP file no 109028)
FILE NUMBER UNDER APPEAL:	083367, 093096
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Health Records and Information Privacy Act 2002 Privacy and Personal Information Protection Act 1998
CASES CITED:	Ibrahim v Commissioner of Police, NSW Police Force (GD) [2010] NSWADTAP 29 KT v Sydney South West Area Health Service [2010] NSWADT 102 KT v Sydney South West Area Health Services [2010] NSWADT 94 LN v Sydney South West Area Health Service (GD) [2010] NSWADTAP 16 Vice Chancellor, Macquarie University v FM [2005] NSWCA 192 Sydney Business Institute Pty Ltd v NSW Vocational Education and Training Accreditation Board (GD) [2010] NSWADTAP 57
REPRESENTATION:	APPELLANT In person RESPONDENT A Britt, counsel / B Woolley, legal officer
ORDERS:	Appeal No 109025: Dismissed Appeal No 109028: Dismissed Appeal No 109029: Dismissed Respondent's Application for Costs of the Appeals: see directions at para [62]

1 This decision deals with three appeals, the file numbers ending in #25, #28 and #29.

2 After migrating to Australia around 2004, Mr KT, the appellant, got work as a cleaner. He worked for some time at the Royal Prince Alfred Hospital. The hospital is managed by the respondent. He made a number of workers compensation claims in relation to injuries said to have happened in the course of his employment, injuries such as severe back pain and depression. He was involved in an incident around July 2008 where he is said to have assaulted a co-worker. The respondent took disciplinary action against him later that year. He was dismissed on 19 January 2009.

3 As noted by the Tribunal in an earlier decision (there he is referred to as TA), he is the applicant in many matters in which the agency is a respondent, either in this Tribunal, the District Court, the Supreme Court, the Industrial Relations Commission or the Government and Related Employees Appeals Tribunal. See LN v Sydney South West Area Health Service (GD) [2010] NSWADTAP 16. That case was one brought by his wife against the respondent. We understand that proceedings in the Industrial Relations Commission challenging his dismissal have been the subject of a settlement.

Appeal #25

4 Mr KT appeals against an oral decision delivered at the close of hearing by the Tribunal on 12 February 2010 (underlying file number 083367).

5 The issues in this case have as their background the workers compensation claims made by KT.

6 On 3 September 2008 he applied under the Privacy and Personal Information Protection Act 1998 (the PPIP Act) and the Health Records and Information Privacy Act 2002 (the HRIP Act) for an internal review of certain conduct of the respondent which he considered might contravene the requirements binding on the respondent under those laws. He added as a complainant his wife. He complained of wrongful disclosures of personal and health information about him, his wife and his daughter. His daughter has a disability.

7 The respondent confined its attention to the complaint relating to his information, as a separate written authority was not received from his wife. It found no contravention. KT applied to the Tribunal for external review.

8 He expressed concern over statements made by his manager to an insurance investigator in relation to his claim that he suffered from work related stress and anxiety. He also expressed concern over the conduct of the doctor belonging to the staff health centre at the hospital. He objected to a letter of referral written by the doctor to his GP. He said it disclosed sensitive personal information without his consent. He had no objection to the principal part of the letter referring to his medical condition and needs. His objection was to the part that referred to his country of origin, his wife's health, the fact that he had a daughter with a disability, his professional status in the country he had left and the year he migrated to Australia.

9 The Tribunal's oral decision is a detailed one. The Tribunal referred to the scope of its jurisdiction, in particular the principle well-accepted in Tribunal case-law, that the scope of the internal review application reasonably construed sets the parameters of both the internal review and the Tribunal's role on external review.

10 Staff Doctor Disclosure. The Tribunal dealt first with the letter of 24 July 2007 from the staff doctor to KT's GP. The doctor, a specialist in occupational medicine, noted that the insurer had declined KT's workers compensation claim. However, the doctor was satisfied that KT was suffering from lower back pain, and hip deterioration. He gave his diagnosis. He referred to more recent incidents that KT reported as having occurred at work, resulting in severe pain. He gave further details as to steps he had recommended to him to assist in alleviating these conditions (such as exercise and physiotherapy). He noted his age, his migration in 2004 to Australia, and the professional position he had held in his home country. He referred to other health problems, and treatments he had provided.

11 At hearing Mr KT denied ever having seen the doctor on or about 24 July 2007, having authorised him to contact his GP or ever having given him any of the information about his personal history.

12 The Tribunal referred to the detailed evidence of the staff doctor, which included a claim form belonging to the period mentioned, signed by KT and nominating the doctor and his GP as his treating doctors. The doctor produced his treating notes, which included a note stating that KT had given verbal consent to write to his GP.

13 The Tribunal commented positively on the doctor as a witness, and accepted his evidence. The Tribunal rejected as 'ridiculous and implausible' the suggestion by KT that the doctor had fabricated his evidence. Expressing itself to have done so reluctantly, in response to a submission from the agency the Tribunal found itself 'compelled to conclude that KT's evidence has not been truthful'.

14 The Tribunal found that the conduct of the doctor complied with both of the first two provisions of Health Privacy Principle 11 of the HRIP Act, being:

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) Consent

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

(b) Direct relation

the 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.

15 Manager's Statements. His manager was interviewed by an insurance investigator on 21 January 2008, arising from a medical certificate from his GP certifying KT as having been unfit for work from 17 January until 24 January 2008 due to anxiety and depression. The interview took a question/answer form, with the manager signing a record of the interview. KT took objection to the answer to question 10, which sought to explore whether there were possible non-work explanations for the anxiety and depression. The manager stated 'I understand from his sister that he has a medical problem (not known). He verbally told me he had a heart condition. I am aware that he has an invalid child.' KT objected to this information being passed on to the investigator and, further, that it was untrue.

16 The Tribunal accepted the manager's evidence that he had been phoned by a woman who had identified herself as KT's sister with the information attributed to her. The information was all information that he remembered. It had never been reduced to a written record. The Tribunal held, applying the ruling of the Court of Appeal in Vice Chancellor, Macquarie University v FM [2005] NSWCA 192 that the information, not being the recorded information of the agency (though it was later recorded by the insurance agency) was not regulated by the HRIP Act.

17 Appeal Points. KT's notice of appeal begins by criticising the Tribunal for not having considered the entirety of his case. He says that he also put in issue a letter from the staff doctor to another doctor. We are satisfied from perusal of the material before the Tribunal that this matter did not form part of his internal review application. It would therefore not have been proper for the Tribunal to have considered this matter.

18 Under the heading 'making a finding of fact where there is no evidence to support it' he sets out 10 points. We will not deal with them one by one. Some of the points, as noted by the respondent, are expressed in a way that makes them very difficult to understand.

19 We understand KT to be aggrieved that his wife's position was not considered. In our view, the respondent adopted an appropriate procedure when it asked for his wife to provide a written authorisation. It may once have been acceptable for one spouse to speak for the other when lodging formal complaints with a government agency and for no check to be done as to the other spouse's desire to be involved. But the advent of laws such as privacy laws and changes in social norms about the nature of the relationship between domestic partners now mean that, appropriately, complaint-receiving bodies must take care before presuming that an agency relationship exists between a complainant and others for whom it is said the complaint is made such as a spouse or close family members.

20 A number of the points challenge the conclusions reached by the Tribunal on the evidence. We have summarised the evidence and findings of the Tribunal.

21 In our view, the approach adopted by the Tribunal was entirely usual. The respondent led evidence from the staff doctor and the manager. There was an opportunity given for them to be cross-examined. The evidence was accepted. This is not a case where it could be argued that the Tribunal had no evidence, or failed to consider critical evidence; and thereby expose the Tribunal to challenge on error of law grounds.

22 Mr KT also asserts that there is 'no evidence [that] proves that my health or my daughter's health information was noted in writing by [the manager] or [the respondent] or was not in a record'. It is clear that the manager's evidence was that he relied on his memory when he made the statement recorded by the investigator under question 10. The Tribunal accepted that evidence. It was entitled to do that. There was no error of law in its approach.

23 The next heading is 'applying the wrong statutory provisions to the facts of the case'. He has 14 points. Most of them are further challenges to the fact finding process, and make no reference to any statutory provisions. He questions, for example, the accuracy of the Tribunal's references in its reasons to his evidence and to the staff doctor's evidence. He compares the precise words he used in his evidence versus the way they are reported in the Tribunal's reasons. In our view, none show any misunderstanding by the Tribunal of KT's evidence.

24 He complains that a statement dated 10 August 2009 filed by him in the proceedings was not considered by the Tribunal.

25 It is not required of a Tribunal that it slavishly refer to all material filed, or work through it in its reasons. As we see it, the reasons should identify the issues that require adjudication, refer to the factual circumstances of relevance to those issues, make any findings required in relation to factual matters that are contested and then apply the law. In our view, the Tribunal's reasons in this matter clearly followed that path. Some economy is required in dealing with voluminous filings. See generally, Sydney Business Institute Pty Ltd v NSW Vocational Education and Training Accreditation Board (GD) [2010] NSWADTAP 57 at [29] ff.

26 He complains that the Tribunal did not consider a number of other privacy principles which he believes the manager infringed in making the communications to the insurance investigator. The Tribunal did not need to go on and consider those principles given its conclusion that the agency did not hold that information in a way that brought it under the regulation of the PPIP Act or the HRIP Act.

27 There is always a judgement involved for a court or tribunal as to whether it goes on and deals in the alternative with arguments when an earlier conclusion has the effect of disposing of the case. Often courts and tribunals do go on to deal with alternative arguments where the earlier conclusion depends on a reasonable contest as to the state of the law, or complex evidence. This was not a case of either of those types, and the Tribunal, we think, having regard to the need for economy, chose not to go to alternative arguments. There was no error in making that choice.

28 The next headings are 'misinterpreting the words in a statutory provision and the Tribunal failing to have regard to relevant considerations' (seven points); and 'not giving the applicant the opportunity to respond to any relevant information which against him' (two points). The balance of the notice of appeal lists reasons why the appeal should be extended to the merits, with the Appeal Panel to rehear the case (12 points).

29 We do not have a transcript of the hearing. We have reviewed the Tribunal file showing all filed material, including witness statements. The appellant was desirous of referring to the transcript in support of his case, but stated that the Registrar of the Tribunal had refused him access without payment of what he saw as a substantial fee, applying the Registry's transcript policy. It is not for the Appeal Panel to intervene on this matter. Counsel for the agency provided us with some oral information on the course of the proceedings before the Tribunal.

30 In our view there is nothing about the reasons for decision of the Tribunal, or the other material in the file, which suggest that any unfairness was visited upon Mr KT. All the key documents were before the Tribunal. The Tribunal gave a balanced account of the evidence. In our view there is no substance to the procedural fairness objections.

31 At its heart this case involves a dispute over the operation of the workers compensation claims process. The staff doctor was seeking to deal with the ongoing circumstances of a disappointed claimant, and, basically, was now taking steps to hand over the patient to his GP. He gave, as we see it, a report of a usual kind which included personal information that might provide the GP with a context for understanding better the patient's concerns. Similarly the manager, in seeking to be co-operative with the claim investigation, gave some personal information in answer to a question about other circumstances that might explain the condition of which the claimant complained. In this instance because the manager derived the information from his memory, and had not recorded it, it was information not regulated by the PPIP Act or the HRIP Act.

32 There was no error in the approach adopted by the Tribunal. It is not desirable to reopen the dispute, the consequence of granting the application to extend to the merits.

Appeal #29

33 This appeal also arises from the above matter (underlying file number 083367).

34 The Tribunal granted the respondent's application for its costs to be paid by KT, to the following extent:

(i) 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.

(ii) the Respondent’s costs of this proceeding incurred after 12 August 2009, such cost, in default of agreement, to be assessed.

35 KT now appeals against that decision published as KT v Sydney South West Area Health Service [2010] NSWADT 102 (27 April 2010).

36 As the Tribunal noted, under s 88 of the Administrative Decisions Tribunal Act 1997 (ADTA), 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).

37 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.

38 The Tribunal stated that the respondent's application relied on the factors set 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'.

39 The Tribunal gave a summary of its oral decision, referred to the history of the proceedings and then turned to the respondent's submissions and KT's submissions in reply. At [34] to [47] it gave its assessment of the application. It noted that while he was not legally qualified, KT 'is not a novice in this jurisdiction, having brought a number of other reviews to the Tribunal' (at [34]). It made the following criticisms of his conduct of his case:

(i) repeatedly seeking to extend the ambit of his application beyond that which was the subject of the internal review, which, in light of Tribunal case-law, was untenable and bound to fail (at [35])

(ii) the document signed by KT presented in the affidavit from the staff doctor that plainly contradicted KT's version that he had not given consent; and similarly in relation to the document signed by KT presented in the affidavit of the manager (at [36]-[37])

(iii) KT's failure to produce any independent evidence supporting his version of events

(iv) similar difficulties confronted KT in respect of other aspects of his case, once the affidavit evidence was filed on 27 July 2009.

40 As to (i), the Tribunal considered the conduct to be 'vexatious' within the meaning of factor (a)(vi). As to (ii), (iii) and (iv) this conduct involved the pursuit of claims that were not tenable, and fell under factor (c).

41 The Tribunal continued:

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.

42 KT's notice of appeal raises many of the same issues that are listed in his earlier notice of appeal against the substantive decision. The only new matters raised appear under heading D, 'Breaching the concepts of natural justice'. He referred to his various attempts to have the member disqualify himself. He claimed that he did not have the opportunity to put his case properly. He said that it seemed that counsel for the respondent (Mr Britt) was aware of the decision in advance.

43 The text of the Tribunal's oral reasons shows that there was an oral application for costs made by Mr Britt at the conclusion of its main judgment. Mr Britt had foreshadowed a costs application during the hearing on 22 January 2010. While a successful party normally applies for costs in the ordinary court system, it is less usual in this Tribunal where the general rule is that no costs are awarded. But it sometimes occurs. There was nothing problematic about the respondent making such an application. The Tribunal gave appropriate directions allowing KT to respond by written submissions, which he did.

44 The bias issue was not pursued in KT's written submissions or in any specific way at hearing. We will not consider it.

45 We are satisfied that the Tribunal adopted a procedurally fair approach to the consideration of the respondent's application.

46 In his submissions, KT challenges some of the account given of his conduct at the planning meeting stage. In our view that matter did not have any significant bearing on the Tribunal's ultimate exercise of discretion.

47 The Tribunal is exercising a broad discretion when making a decision in relation to a costs application. The factors listed in s 88 are merely for guidance in that regard. In this instance, the Tribunal had regard to relevant considerations, it did not take into account any irrelevant considerations, and there is nothing about the decision (though KT will no doubt disagree) that suggests that its judgement involved any manifest injustice.

Appeal #28

48 Mr KT appeals against a decision of the Tribunal made on 15 April 2010 and published as KT v Sydney South West Area Health Services [2010] NSWADT 94 (underlying file number 093096).

49 This matter has its origin in the late 2008 period when the respondent had commenced a disciplinary inquiry and further action. Mr KT sent an email to a personnel manager on 12 November 2008 after learning that there had been a meeting to discuss the assault in which KT had been involved involving another staff member. It included a request that she mail him ‘all details of investigation with statements of witnesses ...’.

50 The Tribunal, rejecting Mr KT's submissions to the contrary, held that this email did not constitute a request for access for documents under any of the three laws binding on the respondent giving rights of access to personal information (the Freedom of Information Act 1989, the PPIP Act or the HRIP Act). The Tribunal, agreeing with the respondent, considered that the request engaging these laws was first made in his letter of 14 February 2009 where these words were used:

Would you please send a copy of my entire file in your department on my address under Privacy and Personnel Information Act 1998 and Freedom of Information Act, 1989.

I wish to get it as soon as possible, and keep all my personnel and health information to be strictly protected and not to be disclosed without my consent in advance according to PPIP Act 1998 and HIP Act 2002.

51 The respondent asked for identity documents to be produced, and levied the usual fee for processing. Mr KT objected by telephone call made 18 February 2009, and asked for the request to be processed under the Privacy laws (there is no fee regime).

52 The way the matter was handled from that point is set out in the reasons of the Tribunal. Not having had a final reply, he filed an application for internal review under the Privacy laws on 17 March 2009, 29 days after the telephone call.

53 The importance of the dates mentioned is that Mr KT considers that the respondent contravened the timeliness requirements of the PPIP Act and the HRIP Act. The Information Protection Principle set out at PPIP Act, s 14 provides:

14 Access to personal information held by agencies

A public sector agency that holds personal 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.

54 The Health Privacy Principle set out at cl 7(1) of Schedule 1 of the HRIP Act contains a similar provision in regard to an individual’s health information.

55 Unlike the FOI Act, there are no formal time limits for processing requests for personal information made under the privacy laws.

56 The Tribunal's reasons deal at some length with the circumstances, and conclude that there was no excessive delay in dealing with the request. The Tribunal noted, for example, that, for sound administrative and legal reasons (for example, the IPPs and HPPs do not directly address the issue of exempt material), the respondent first proceeded to deal with the request as an FOI request.

57 Mr KT's notice of appeal is in a similar style to the one presented in Appeal #28. It has three main headings with 24 sub-points. He refers to settlement discussions with the agency, he raises the issue as to whether the start date should have been seen as the email request of 12 November 2008, he raises concerns as to how he was disadvantaged in the disciplinary process by the way the respondent responded to his requests for information and disputes the Tribunal's judgement in relation to excessive delay.

58 The Tribunal concluded:

49 Given those provisions, and the internal arrangements for the processing of requests for access to information under the three Acts within the SSWAHS, I think it reasonable that KT’s request was first referred to the FOI officer. While I accept that there is some substance to KT’s complaint of delay as a result of the FOI officer not closing his FOI application soon after his phone conversation with her on 18 February 2009, I can also see that, as KT had not confirmed his advice in writing, an abundance of caution might well have led the FOI officer to wait as long as possible to close the application without written confirmation. This is especially so given the considerable history of disputes between KT and the SSWAHS.

50 Irrespective of the explanations for the delay, the reality is that the between SSWAHS receiving his request and his application for internal review of conduct (the delay) a total 29 days had passed. Given the relevant circumstances and conduct I do not accept that this is an excessive delay.

51 There is therefore no breach of IPP 14 or HPP 7(1).

59 It is particularly difficult to have set aside on appeal a decision by a trial body that depends on a discretionary evaluation, especially where the governing statute uses broad and simple language of an everyday kind such as 'excessive'. See further, the following discussion in Ibrahim v Commissioner of Police, NSW Police Force (GD) [2010] NSWADTAP 29, where the adjective under notice was 'serious':

16 Accordingly, the determination of whether a matter is ‘serious’ is essentially a factual one, to which, in our opinion for the reasons which follow, the legal boundaries applicable to the making of findings of fact apply.

17 Appellate courts have, historically, drawn a distinction as to the legal standards that apply to the exercise of statutory or judicial discretions and those that apply to fact-finding where the fact to be found has a sense of degree and imports a range. To the first category apply the principles of House v R [1936] HCA 40; (1936) 55 CLR 499 at 505-6. To the second category apply the narrower requirements of Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531. In the latter case, legal error only arises if the finding, to use words found in the cases, is ‘plainly wrong’, ‘wholly erroneous’ or ‘patently unsustainable’. Whereas the House v R principles go further, and ask whether proper regard has been given to relevant considerations, and no regard has been given to irrelevant considerations and suchlike.

18 The body of case-law that surrounds appellate interventions into findings going to adjectival expressions such as ‘serious’ or ‘extreme’ contains detailed discussion of which test is applicable. In Victoria, see the Full Bench decision in Mobilio v Baliotis [1998] 3 VR 833 and a line of cases that have followed, where the narrow Warren v Coombes standard is applied to trial level findings as to whether an injury is ‘serious’ under accident compensation laws. For discussion of the difference between the two approaches in New South Wales, see Spigelman CJ in Perpetual Trustee Company Ltd v Khoshaba ( Khoshaba ) [2006] NSWCA 41 at [35]-[39]; and, more recently, Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56 per Campbell JA (Ipp and Giles JJA agreeing) at [91] ff.

19 In our view the determination in this legislative scheme of whether an assault offence is a ‘serious’ one requires a finding of fact, which can only be challenged for legal error if it is plainly wrong or patently unsustainable.

20 In many cases, whether the House v R standard or the Warren v Coombes standard is applied the result will be the same. Spigelman CJ observed at [40] in Khoshaba :
40 Where, as here, the first statutory step is clearly a finding of fact, albeit one involving a broadly based value judgment, it may be that the Court should invoke the principles reflected in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 rather than in House v The King . Nevertheless, in most cases it is unlikely that the different tests will lead to different results.

60 In our view, there was nothing exceptional about the way the Tribunal dealt with this case.

Respondent's application for costs of these appeals

61 At the close of the hearing of these appeals (19 July 2010), the respondent applied for an award under s 88 of its costs of all three appeals. In summary, the respondent submitted that the appeals raised matters that were not within jurisdiction, were misconceived or lacking in substance. The respondent reserved the right to make submissions following delivery of this decision.

62 The following directions are given:

1. Respondent to file and serve submissions in support of its application, limited to 2000 words, within 14 days of the date of this decision.

2. Appellant to file and serve submissions in reply within a further 14 days.

3. Appeal Panel to make decision on the papers, as permitted by s 76 of the Administrative Decisions Tribunal Act 1997, unless a party objects, in which case a telephone conference will be held to consider the objection. Any objection is to be placed in the first paragraph of the submissions.

Orders

Appeal No 109025: Dismissed

Appeal No 109028: Dismissed

Appeal No 109029: Dismissed

Respondent's Application for Costs of the Appeals: see directions at para [62] above.