PC v University of New South Wales (No 2)

[2005] NSWADT 264

CITATION:	PC v University of New South Wales (No 2) [2005] NSWADT 264
DIVISION:	General Division
PARTIES:	APPLICANT PC RESPONDENT University of New South Wales
FILE NUMBER:	053071
HEARING DATES:	18/08/2005
SUBMISSIONS CLOSED:	10/06/2005
DATE OF DECISION:	11/22/2005
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	Costs
MATTER FOR DECISION:	Respondent's application for costs
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:	PC v University of New South Wales [2005] NSWADT 157 BQ v Commissioner of Police New South Wales Police Service [2002] NSWADT 64 Fitzpatrick v Chief Executive Officer Ambulance Service of NSW [2003] NSWADT 132 Miriani v Commissioner for Fair Trading [2005] NSWADT 99
REPRESENTATION:	APPLICANT In person RESPONDENT N Sharp of counsel instructed by M Toomey, Assistant University Solicitor, University of New South Wales
ORDERS:	The applicant pay the respondent’s costs of and incidental to the proceedings, fixed at $2,500

1 On 18 May 2005 the Tribunal orally dismissed the applicant’s application, purporting to be an application for review of the conduct of a public sector agency made pursuant to s 55 of the Privacy and Personal Information Protection Act 1998 (the Privacy Act or the Act). It did so on the motion of the respondent agency. The ground for dismissal was want of jurisdiction. The Tribunal agreed with the respondent agency that the applicant had not fulfilled the pre-condition for an application to the Tribunal, namely the making of an application to the agency for internal review of the alleged conduct.

2 The applicant applied to the Tribunal on 19 May 2005 for written reasons for the dismissal. These were provided on 8 July 2005. See PC v University of New South Wales [2005] NSWADT 157.

3 At the conclusion of the hearing on jurisdiction, the respondent applied for costs. The Tribunal gave directions for the filing of submissions.

4 The respondent filed its submissions in support of its application for costs on 24 May 2005. On 13 September 2005 the Tribunal wrote to the parties inviting submissions on whether the Tribunal had jurisdiction to make orders for costs in privacy matters. The applicant filed her submissions on the costs application on 21 September 2005. The respondent filed its additional submissions on the jurisdictional point on 6 October 2005.

Jurisdiction

5 The scheme of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) divides the jurisdiction of the Tribunal into two categories: proceedings involving the ‘review of reviewable decisions’; and proceedings for an ‘original decision’. The dichotomy appears at several points in the Tribunal Act: see Objects clause – s 3(a)(i) and (ii), ss 7 and 8, read together with the definition of ‘decision’ in s 6, the description of the kinds of decision the Tribunal can make – s 36, the subject matters of Chapter 4 (Original decision-making) and Chapter 5 (Process for review of reviewable decisions) and Chapter 7 (Appeals).

6 The costs powers of the Tribunal are based on that categorisation. The general rule is found in s 88(1) of the Tribunal Act, but it is disapplied in the case of proceedings for ‘original’ decisions by sub-section (3):

‘ 88 Costs

(1) 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 there are special circumstances warranting an award of costs.…

(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.’

7 The result of these two provisions, therefore, is that in the Tribunal’s non-original (i.e. review) jurisdiction it may award costs based on the principle in s 88(1); but if the matter falls on the ‘original decisions’ side then the power must be found in the primary Act conferring jurisdiction on the Tribunal.

8 Normally the matter of whether the Tribunal is exercising ‘review’ or ‘original’ jurisdiction is clear. However, in the case of the Privacy Act the position is less than clear. If the Tribunal’s function in dealing with Privacy Act applications involves the making of an original decision, then the Tribunal has no power to award costs, because there is no provision in the Privacy Act dealing with that matter.

9 The question of the category into which the functions of the Tribunal under the Privacy Act fall has troubled the Tribunal, sitting at first instance, on a number of occasions since the privacy jurisdiction commenced operation on 1 July 2000.

10 The provisions conferring functions on the Tribunal in relation to compliance by agencies with the Privacy Act are found in Part 5, Review of Certain Conduct. It is helpful to set out all the provisions of this Part, ss 52-56, with comments.

‘ PART 5 – REVIEW OF CERTAIN CONDUCT

Application of Part

52 Application of Part

(1) This Part applies to the following conduct:

(a) the contravention by a public sector agency of an information protection principle that applies to the agency,

(b) the contravention by a public sector agency of a privacy code of practice that applies to the agency,

(c) the disclosure by a public sector agency of personal information kept in a public register.

(2) A reference in this Part to conduct includes a reference to alleged conduct.

(3) This Part does not apply to any conduct that occurred before the commencement of this Part.

(4) Section 53 (Internal reviews) of the Administrative Decisions Tribunal Act 1997 does not apply to or in respect of conduct to which this Part applies.’

11 Comments: It will be seen that the Part applies to specified types of ‘conduct’: s 52(1). Section 52(4) would tend to suggest that the intention of the Parliament was to align the Privacy Act with the scheme contained in the Tribunal Act for review of reviewable decisions. This provision is similar to one that appears in the Freedom of Information Act 1989 (the FOI Act). In the case of that Act, the scheme for internal review of agency decisions found in the Tribunal Act is disapplied: s 53(4)(a). Section 53(4) of the FOI Act provides:

‘(4) In relation to decisions under this Act that are reviewable decisions under the Administrative Decisions TribunalAct 1997 :

(a) the procedures for internal reviews provided by this Act apply to the exclusion of section 53 (Internal reviews) of the Administrative Decisions Tribunal Act1997, and

(b) any reference in the AdministrativeDecisions Tribunal Act 1997 to an internal review of a reviewable decision under that Act is taken, in its application to a decision made under this Act, to be a reference to an internal review under this Act.’

12 Comments: Missing from the scheme of the Privacy Act is a provision comparable to s 53(4)(b). Were there such a provision in the Privacy Act, that would support the conclusion that the Privacy Act’s conferral of jurisdiction is meant to belong to the review of reviewable decisions side of its jurisdiction.

13 The next provision gives a right to an aggrieved person to apply for internal review:

‘ 53 Internal review by public sector agencies

(1) A person ("the applicant") who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct.

(2) The review is to be undertaken by the public sector agency concerned.

(3) An application for such a review must:

(a) be in writing, and

(b) be addressed to the public sector agency concerned, and

(c) specify an address in Australia to which a notice under subsection (8) may be sent, and

(d) be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application, and

(e) comply with such other requirements as may be prescribed by the regulations.

(4) Except as provided by section 54 (3), the application must be dealt with by an individual within the public sector agency who is directed by the agency to deal with the application. That individual must be, as far as is practicable, a person:

(a) who was not substantially involved in any matter relating to the conduct the subject of the application, and

(b) who is an employee or officer of the agency, and

(c) who is otherwise suitably qualified to deal with the matters raised by the application.

(5) In reviewing the conduct the subject of the application, the individual dealing with the application must consider any relevant material submitted by:

(a) the applicant, and

(b) the Privacy Commissioner.

(6) The review must be completed as soon as is reasonably practicable in the circumstances. However, if the review is not completed within 60 days from the day on which the application was received, the applicant is entitled to make an application under section 55 to the Tribunal for a review of the conduct concerned.

(7) Following the completion of the review, the public sector agency whose conduct was the subject of the application may do any one or more of the following:

(a) take no further action on the matter,

(b) make a formal apology to the applicant,

(c) take such remedial action as it thinks appropriate (eg the payment of monetary compensation to the applicant),

(d) provide undertakings that the conduct will not occur again,

(e) implement administrative measures to ensure that the conduct will not occur again.

(7A) A public sector agency may not pay monetary compensation under subsection (7) if:

(a) the applicant is a convicted inmate or former convicted inmate or a spouse, partner, relative, friend or an associate of a convicted inmate or former convicted inmate, and

(b) the application relates to conduct of a public sector agency in relation to the convicted inmate or former convicted inmate, and

(c) the conduct occurred while the convicted inmate or former convicted inmate was a convicted inmate, or relates to any period during which the convicted inmate or former convicted inmate was a convicted inmate.

(8) As soon as practicable (or in any event within 14 days) after the completion of the review, the public sector agency must notify the applicant in writing of:

(a) the findings of the review (and the reasons for those findings), and

(b) the action proposed to be taken by the agency (and the reasons for taking that action), and

(c) the right of the person to have those findings, and the agency’s proposed action, reviewed by the Tribunal.’

14 Comments: This is an Act-specific internal review system, and replaces, substantially, the general internal review provisions of the Tribunal Act. The other important example of this approach in the enactments conferring functions on the Tribunal is found in the FOI Act. The main internal review provision in that Act is s 34, which provides:

‘ 34 Internal review

(1) A person who is aggrieved by a determination made by an agency is entitled to a review of the determination.

(2) An application for review of a determination:

(a) shall be in writing, and

(b) shall be accompanied by such application fee as the agency may determine, and

(c) shall be addressed to the principal officer of the agency, and

(d) shall specify an address in Australia to which notices under this Act should be sent, and

(e) shall be lodged at an office of the agency:

(i) if notice of the determination was given to the applicant—within 28 days after that notice was given, or

(ii) if no notice of the determination was given to the applicant—within 49 days after the application was received by the agency, or

(iii) in any case, within such further time as the principal officer of the agency may allow.

(3) A person is not entitled to a review of:

(a) a determination of an application made under this section, or

(b) a determination that has been made by the principal officer of an agency.

(4) An application under this section shall be dealt with in accordance with this Part as if it were an application under section 17.

(5) An application under this section shall not be dealt with by the person who dealt with the original application under section 17 or by a person who is subordinate to that person.

(6) An agency that fails to determine an application made under this section within 14 days after it is received by the agency shall, for the purposes of this Act, be taken to have made a determination under section 24 refusing access to the document to which the application relates.

(7) For the purposes of this section, a person is aggrieved by a determination:

(a) if the determination relates to an application made by the person under section 17 and is to the effect that:

(i) an agency refuses to give the applicant access to a document, or

(ii) access to a document is to be given to the applicant subject to deferral, or

(iii) access to a copy of a document from which exempt matter has been deleted is to be given to the applicant, or

(iv) access to a document is to be given to the applicant subject to a charge for dealing with the application, or for giving access to a document, that the applicant considers to be unreasonable, or

(v) a charge for dealing with the application is payable by the applicant, being a charge that the applicant considers to have been unreasonably incurred, or

(b) if the determination relates to an application made by some other person under section 17 in respect of a document to which one or more of the provisions of Division 2 applies and:

(i) an agency should have, but has not, taken such steps as are reasonably practicable to obtain the views of the person as to whether or not the document is an exempt document by virtue of any one or more of the provisions of Part 2 of Schedule 1, or

(ii) an agency should have, and has, taken such steps, but the determination is not in accordance with the views of the person, or

(c) if the determination relates to an application made by the person under section 17 and is a determination that was taken to have been made by virtue of section 24 (2) (which provides that an agency that fails to determine an application within 21 days after the application was received by the agency is taken to have determined the application by refusing access to the document to which it relates).

(8) Subsections (3) (b) and (5) do not apply to the internal review of a determination that was taken to have been made by virtue of section 24 (2).’

15 Comments: It will be seen that the Privacy Act provisions parallel in important respects the approach of the FOI Act. There are several similarities: for example, the need for an application in writing, containing certain particulars; and the time limits applying to the agency in respect of the making of decisions or findings.

16 More importantly the conferral on persons of the entitlement to apply for internal review use very similar terms. The Privacy Act provides:

‘(1) A person ("the applicant") who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct.’

17 While the FOI Act provides:

‘(1) A person who is aggrieved by a determination made by an agency is entitled to a review of the determination.’

18 Section 53(8) is, I think, an important provision in helping to determine whether the jurisdiction is a ‘review’ jurisdiction or an ‘original’ one. Most importantly sub-para (c ) confers an entitlement on the individual to have the agency’s ‘findings’ and the agency’s ‘proposed action’ reviewed by the Tribunal. The ‘findings’ will be in the agency’s report, and they constitute decisions. In the law ‘finding’ has the meaning of a ‘decision or verdict after judicial inquiry’ (Macquarie Dictionary, meaning 3, 1981, 1st ed); and it has this connotation when used in s 53(8), though the inquiry is an administrative one. To reiterate, s 53(8) of the Privacy Act provides:

‘(8) As soon as practicable (or in any event within 14 days) after the completion of the review, the public sector agency must notify the applicant in writing of:

(a) the findings of the review (and the reasons for those findings), and

(b) the action proposed to be taken by the agency (and the reasons for taking that action), and

(c) the right of the person to have those findings, and the agency’s proposed action, reviewed by the Tribunal.’

19 In comparison, the relevant provision of the FOI Act, in keeping with the language of the Tribunal Act, simply gives a right to review the ‘determination’ of the agency.

20 The next provision is s 54.

‘ 54 Role of Privacy Commissioner in internal review process

(1) A public sector agency that receives an application under section 53 must:

(a) as soon as practicable after receiving the application notify the Privacy Commissioner of the application, and

(b) keep the Privacy Commissioner informed of the progress of the internal review, and

(c) inform the Privacy Commissioner of the findings of the review and of the action proposed to be taken by the agency in relation to the matter.

(2) The Privacy Commissioner is entitled to make submissions to the agency in relation to the subject matter of the application.

(3) The Privacy Commissioner may, at the request of the agency concerned:

(a) undertake the internal review on behalf of the agency, and

(b) make a report to the agency in relation to the application.

(4) The Privacy Commissioner is entitled to charge an appropriate fee for that service.

(5) Section 53 (7), (7A) and (8) apply in respect of an internal review that is undertaken by the Privacy Commissioner on behalf of an agency.’

21 Comments: This provision provides a mechanism for oversight to be exercised by the Privacy Commissioner. It also allows an agency to engage the Privacy Commissioner to undertake the internal review. The Commissioner’s report becomes the agency’s report. It confirms the importance of the internal review process, and the decision-making it entails, as part of the scheme of the Act.

22 Section 55 confers jurisdiction on the Tribunal.

‘ Review of conduct by Tribunal

55 Review of conduct by Tribunal

(1) If a person who has made an application for internal review under section 53 is not satisfied with:

(a) the findings of the review, or

(b) the action taken by the public sector agency in relation to the application,

the person may apply to the Tribunal for a review of the conduct that was the subject of the application under section 53.

(2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders:

(a) subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct,

(b) an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice,

(c) an order requiring the performance of an information protection principle or a privacy code of practice,

(d) an order requiring personal information that has been disclosed to be corrected by the public sector agency,

(e) an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant,

(f) an order requiring the public sector agency not to disclose personal information contained in a public register,

(g) such ancillary orders as the Tribunal thinks appropriate.

(3) Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997.

(4) The Tribunal may make an order under subsection (2) (a) only if:

(a) the application relates to conduct that occurs after the end of the 12 month period following the date on which Division 1 of Part 2 commences, and

(b) the Tribunal is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency.

(4A) The Tribunal may not make an order under subsection (2) (a) if:

(a) the applicant is a convicted inmate or former convicted inmate or a spouse, partner, relative, friend or an associate of a convicted inmate or former convicted inmate, and

(b) the application relates to conduct of a public sector agency in relation to the convicted inmate or former convicted inmate, and

(c) the conduct occurred while the convicted inmate or former convicted inmate was a convicted inmate, or relates to any period during which the convicted inmate or former convicted inmate was a convicted inmate.

(5) If, in the course of a review under this section, the Tribunal is of the opinion that the chief executive officer or an employee of the public sector agency concerned has failed to exercise in good faith a function conferred or imposed on the officer or employee by or under this Act (including by or under a privacy code of practice), the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister (if any) for the public sector agency.

(6) The Privacy Commissioner is to be notified by the Tribunal of any application made to it under this section.

(7) The Privacy Commissioner has a right to appear and be heard in any proceedings before the Tribunal in relation to a review under this section.’

23 Comments: The wording of s 55(1) departs from the way s 53(8) was expressed; and this alteration in wording is the main cause of the difficulty which has surrounded the question of whether the functions conferred on the Tribunal involve the exercise of original jurisdiction as distinct from review jurisdiction. As can be seen, s 55(1) allows the applicant for internal review to apply to the Tribunal ‘for a review of the conduct that was the subject of the application’. This right is given to any person who is ‘not satisfied with’ the findings of the review, or the action taken by the agency. It can be argued that the Tribunal is called upon to review the conduct afresh. It does not review any decision of the agency. But the applicant can only approach the Tribunal if he or she is ‘not satisfied’ with the ‘findings’ of the review or the action ‘taken’ by the agency. The latter element also involves a shift from the language of s 53(8). Section 53(8) requires notice to be given to the applicant of the right to apply for review of the findings or the ‘proposed’ action.

24 Read together, in my view, s 53(8) and s 55(1) contemplate a process whereby the Tribunal examines the conduct in issue, and at the same time undertakes a review of the findings of the internal report and considers the action proposed to be taken by the agency, or actually taken by the agency. The taking of an action by an agency would itself amount to a ‘decision’ for the purposes of the Tribunal Act. See the definition of decision at s 6(g), which, it is noted, is an inclusive rather than an exhaustive definition:

‘A decision includes any of the following: …

(g) doing or refusing to do any other act or thing.’

25 Section 56 provides:

‘ 56 Appeals to Appeal Panel against decisions and orders of Tribunal

An order or other decision made by the Tribunal under this Part may be appealed to an Appeal Panel of the Tribunal under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 by a party to the proceedings in which the order or decision is made.’

26 Comments: If the position is that the Tribunal’s functions belong to the review side, then s 56 is unnecessary. It is only necessary to provide specifically for an appeal right in the case of original jurisdiction matters: s 112(1)(a).

Assessment

27 The issue of whether the privacy function falls on the original or review side has been examined previously by the Tribunal in the context of an application for leave to proceed out of time.

28 In BQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 64, Britton JM concluded at [14], without giving reasons, that the Tribunal was exercising its review jurisdiction in Privacy Act matters. She found, therefore, that because of the disapplication of s 53 of the Tribunal Act by s 52(4) of the Privacy Act, there was no time limit imposed after the making of an internal review decision on the making of an application to the Tribunal.

29 In Fitzpatrick v Chief Executive Officer, Ambulance Service of NSW [2003] NSWADT 132, Hennessy DP closely examined the provisions leaning either way on the question of classification of the Tribunal’s jurisdiction under the Privacy Act. She examined the general provisions of the Tribunal Act to: ss 7, 8, 37, 38, 88 and 112; and Privacy Act: s 52(4), s 55(3), s 56. She concluded ‘on balance’ that the Tribunal was exercising its review jurisdiction when dealing with applications for review of conduct made under the Privacy Act. She agreed, therefore, with the conclusion in BQ. She said at [12]:

‘12 Although the legislative intention is not consistent, on balance, I am satisfied that applications made under s 55 of the PPIP Act are applications for a review of a reviewable decision, despite the fact that it is conduct, and not a decision, that is being reviewed and that s 56 of the PPIP Act relating to appeals is superfluous. The use of the word “review”, albeit in relation to conduct, suggests that the Tribunal is conducting a merits review of that conduct.’

30 In my view, for the reasons given in my comments on s 53(8) and s 55(1), there is a basis for concluding that at least part of what the Tribunal is doing in a Privacy Act matter is reviewing the decision of the agency to the extent that its findings come under review, or the action taken or proposed to be taken come under review. It is significant in this respect that s 55(3) of the Privacy Act preserves the Tribunal’s powers under Division 3 of Part 3 of Chapter 5 of the Tribunal Act. These powers include the power to affirm, vary or set aside the ‘reviewable decision’: s 63. At the least, s 55(3) is another manifestation of an intention on the part of the Parliament to assimilate the Tribunal’s privacy functions to the review jurisdiction.

31 Instead of simply describing the report prepared by the agency in response to the application for internal review as a ‘determination’, the Parliament chose in the Privacy Act instead to refer to the two key elements of the report – ‘the findings’ and ‘the action proposed’. These are also the two key elements of any determination. The term ‘findings’ is commonly used to refer to findings of fact; it is also often used to refer to the ultimate findings resulting from the application of the law to the facts as found – the question of contravention (or liability). The term ‘action proposed’ deals with the question, in the event of an adverse finding on liability, of ‘remedy’.

32 As noted, s 55(1) expresses the right to apply for review in different terms to s 53(8). Another difference is that s 53(8) speaks of a right to review ‘proposed action’, while s 55(1) gives a right to review ‘action taken’. This difference is understandable as s 53(8) is dealing with the contents of a notice to be given to the applicant within 14 days of the finalisation of the report.

33 It may be that the explanation for there being no time limit on Privacy Act review applications (see Fitzpatrick) lies in the words ‘action taken’. It may be some time before an agency ‘takes action’ following a report. It would be unfair to applicants if they were precluded from bringing a case to the Tribunal simply because they had had to wait for a long time to see whether the action taken by the agency was satisfactory.

34 The Tribunal’s role in reviewing the ‘conduct’ of the agency must be seen in a global context. The Tribunal will have before it, unless the agency failed to act (a circumstance for which there is special provision), the agency’s report on the conduct put in issue by the application for internal review. The process adopted by the Tribunal is one of re-examination of the circumstances. This is no different to the process followed in conventional external review of determinations.

35 The remedy provisions are not the conventional ones of administrative review. They resemble the order-making powers given to the Tribunal in one of its original jurisdictions, the Anti-Discrimination or Equal Opportunity jurisdiction. On the other hand the Privacy Act does, as already noted, give the Tribunal power to make orders of the kind conventionally made in administrative review proceedings.

36 Ultimately the question posed by s 88(3) of the Tribunal Act is whether the relevant function (here the privacy function) belongs to the ‘original’ jurisdiction.

37 Section 37 is the key provision describing the nature of the Tribunal’s original jurisdiction:

‘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.’

38 In my view when it is carrying out its function of reviewing the conduct of the agency the Tribunal is not acting in the way contemplated by s 37 of the Tribunal Act. It is, in my view, not acting as the ‘primary decision-maker’. There is already, in the form of the report containing findings and proposed action, a decision made by the agency on the matter.

39 The agency is the primary decision-maker. The Tribunal is clearly a secondary decision-maker. It can issue a different set of ‘findings’ and can propose different ‘action’.

40 Some support for the conclusions I have reached can also be found in a more recently enacted privacy law, the Health Records and Information Privacy Act 2002 (HRIPA). HRIPA contains a special set of Health Privacy Principles (HPPs) which govern the handling of health information by every organisation that is a health service provider or that collects, holds or uses health information. These organisations are categorised by the Act as either public sector agencies or private sector persons (both legal and natural).

41 In the case of the conduct of private sector persons, the complaint must be made to the Privacy Commissioner. The Privacy Commissioner makes a report if the matter is not resolved by conciliation. If the complainant wishes, he or she can then make an application to the Tribunal. HRIPA contains a note to s 48(1) declaring that the jurisdiction of the Tribunal is an ‘original’ one. Where the proceedings involve private sector persons, the Act deals expressly with the question of the power to award costs (s 55); and with the right of appeal to the Appeal Panel (s 57). This is consistent with the indication given in the note. Moreover, there is no provision for internal review in the private sector model.

42 On the other hand, in the case of complaints relating to public sector agencies, HRIPA simply applies the Privacy Act scheme (s 21). The omission of any note to similar effect, and the omission to make any special provision for costs tends to support the conclusion that the jurisdiction of the Tribunal in relation to privacy complaints against public sector agencies is not intended to be an original one.

43 Returning to the present case, my conclusion, therefore, is that the respondent’s application for costs is a competent one.

44 I now turn to the respondent’s application.

Application for Costs

45 The role of the Tribunal, in administrative review, is one of inquiry, the ultimate object being to ascertain what is the correct and preferable decision. In the privacy area, this remains a reasonable way of describing the process the Tribunal is engaged in. The Tribunal is seeking to ascertain what the ‘correct and preferable’ action might be on the part of the agency in response to the matters put in issue by the applicant in relation to the agency’s conduct. Citizens are entitled to come to the Tribunal to have the administrative decision or administrative conduct reviewed, though ultimately, on review, the Tribunal may affirm the decision under review, or in the case of a Privacy Act inquiry may make no adverse finding or decide that no further action is required.

46 The Tribunal ordinarily does not make awards of costs, especially in review proceedings. The applicant for a costs order must demonstrate that there are ‘special circumstances’ that take the case outside the ordinary boundaries that apply to the conduct of cases in the Tribunal. There is no significance, in itself, in the fact that the other side might have ‘lost’. In any event the terms ‘win’ and ‘lose’ have no role, in my view, as a way of describing outcomes in the administrative review process.

47 There is no disagreement with these propositions in the submissions of the respondent in this case in support of its application. It submits that this case is in a different category. Here, it is submitted, the applicant initiated proceedings in the Tribunal without complying with a pre-condition to jurisdiction (the making of an application for internal review to the respondent, as required by s 53 and s 55(1)). The consequence is that the respondent was put to the cost of responding to the applicant’s application to the Tribunal in circumstances where it had not been afforded the opportunity to deal with the matter at agency level. It was exposed to a cost that perhaps could have been avoided. It then had to make submissions that the application was without jurisdiction.

48 The respondent noted that the applicant had been warned by the Tribunal at planning meetings on 19 April 2005 and 11 May 2005 (at which point she had received the respondent’s written submissions on jurisdiction) that she needed to demonstrate that she had satisfied the requirements of s 55(1) governing applications to the Tribunal, in particular that she is ‘a person who has made an application for internal review under section 53’. She had also been warned by letter dated 11 May 2005 by the respondent that there would be an application for costs, if the Tribunal decided that it did not have jurisdiction.

49 The respondent noted, accurately, in its submissions that at the hearing on 18 May 2005 the applicant contended that a letter dated 28 November 2004 which she had written to the Vice-Chancellor constituted her internal review application; and that, when questioned by the Tribunal, she conceded that as at the date of that letter she was not even aware of the internal review procedures of the Privacy Act.

50 I dealt with this matter in the following terms in the decision:

‘10 Obviously if the agency gets a letter that does not mention the Act, does not mention information protection principles and the like, does not seek formal remedies (as was the case with the letter of 28 November 2004), then it may be that it is never seen by the agency as being the kind of application that fits under s 53.

11 The further concern I have got and I have only heard what you have said from the bar table, PC, is that it is not at all apparent to me that on 28 November 2004 you yourself intended this to be an application for internal review under s 53 of the Act. It seems to me if an applicant comes in here and says my application for internal review was letter X, the least you would expect is for them to assert, is that this was intended by me to be an application for internal review under s 53 of the Act.

12 If you look at the letter, it seems to me that it is nothing more than a letter which expresses a grievance, clearly, over the distribution of emails and it does request the University's formal position. But that, it seems to me, is hardly enough even then to trigger the Act as it might apply to the one matter you have raised. If you look at s 53, the University has got to make all sorts of decisions and one of them is to make sure it does not put anyone on the case who is somehow affected by a conflict of interest.

13 That is roughly what subsection (4) says, and then it has got to undertake an enquiry which has as its object the question of whether any of the steps referred to in subsection (7) are to be taken. It would, I think, to some extent be guided in its judgment on the matters raised in subsection (7) by what the person puts to them in the letter, what are they asking for.

14 It seems to me that the factors that are subjective to you and factors that involve an objective scrutiny of this letter, could not reasonably allow the Tribunal to conclude that this letter was a trigger letter for the purpose of s 53.’

51 The respondent referred to my decision in the case of Miriani v Commissioner for Fair Trading [2005] NSWADT 99 at [30] to [40]. In that case I imposed a costs order on an applicant who had purported to make an application for review of a determination made under the Freedom of Information Act 1989. (As it happens that decision has been set aside on procedural grounds and has been remitted for reconsideration. I see no reason to depart from the statements of principle that I made in that case.)

52 In that case the applicant had pressed an application where the agency’s position was that it had fully complied with his access request, and released all documents. The agency argued, in my view cogently, that such a determination did not engage the jurisdiction of the Tribunal. The agency pointed to the number of times prior to the applicant coming to the Tribunal and after the matter was in the Tribunal where this view had been expressed to the applicant. The agency noted that the Tribunal agreed.

53 There I said:

‘36 What sets this case apart from the many FOI cases where agencies have found themselves responding to difficult and persistent applicants is that the agency has consistently asserted that it has fully and properly responded to the request, and therefore the applicant’s conduct is oppressive, in that the agency has done all it can do.

37 In the Tribunal’s opinion, in this instance the agency has demonstrated that it has properly and fully dealt with the request, and there is no issue properly left to press.

38 The FOI Act confers important rights on citizens; and agencies allocate administrative resources to ensuring that those rights are respected. If agencies fully respond, claiming no exemptions, then they should have some protection from being called on to devote further resources to responding to the application. Those resources are being diverted from good applications. On the other hand, some applicants may have difficulty in appreciating that an agency has fully responded, and they perhaps should not necessarily therefore be made the subject of a costs order for pressing on to the Tribunal.

39 If a citizen continues to press an application in circumstances where it is reasonable to conclude that the applicant had enough understanding of the Act as to be likely to appreciate that the application was an empty one, then some sanction should be administered by the Tribunal. In the Tribunal’s opinion, this applicant has engaged in distorted logic in an attempt to demonstrate that the REVS system, in particular, is some kind of repository of ‘personal affairs’ information or, more broadly, ‘personal information’. The proposition is, in the Tribunal’s view, simply unsustainable; and the Tribunal believes that the applicant is of sufficient sophistication to appreciate that.’

54 The same observations can, I consider, be made about this case. The applicant is self-represented; but she has been a senior academic staff member of the respondent University. She is, I consider, well able to understand that an application puts the respondent necessarily to expense and use of staff resources. She should have taken some steps to inform herself of the requirements attaching to the making of applications. It was pointed out to her by the Tribunal that there was a real issue as to whether she satisfied the precondition to jurisdiction.

55 The respondent has sought an order for its costs of and incidental to the proceedings in the amount of $5000, being solicitor’s and counsel’s fees (supporting papers provided).

56 The applicant has lodged an appeal against the Tribunal’s earlier decision. Her submission is that it is not appropriate for the Tribunal to deal with the costs application pending determination of that appeal. She did, in her letter to the Tribunal dated 21 September 2005, refer to the quantification by the respondent of its costs. One of her contentions is that it is not proper to include the costs of an in-house salaried solicitor in the costs sought. She also referred to what she saw as the imbalance between the legal resources that the respondent brought to the matter as compared to her approach. She applied for the respondent’s application to be dismissed.

57 In my view, there are ‘special circumstances’ here warranting the making of an order for costs against the applicant. The applicant did not meet an essential requirement for invoking the jurisdiction of the Tribunal. She did not produce the application for internal review. She, therefore, deprived the agency of the opportunity to deal with the matter at local level. She did not heed the warnings given to her at Tribunal directions hearings. The procedures found in the Privacy Act relating to internal review are clearly expressed and set out. The Tribunal accepts that there will be cases where a person has made what they, reasonably, think is an internal review application, but it turns out that the Tribunal does not agree. If the case were one where the view was reasonably held but the application is ultimately found not to engage the jurisdiction of the Tribunal, I would not see that as involving any ‘special circumstances’ warranting an application for costs. As I read the legislation, it is about promoting, within reason, access by citizens to an external tribunal without exposing them to the fear of a costs order if their proceedings do not produce a positive result for them. But the inclusion of the qualification ‘special circumstances’ is intended to indicate that the Tribunal does have the power to use the sanction of a costs order in situations that go well beyond the usual in the conduct of proceedings.

58 This is an instance where a costs order should be made.

59 As to the amount, I think that the party in default should nonetheless, only be exposed to costs as they relate to the preparation and attendance of one lawyer as from the point at which the default arose. Tribunals should discourage double-lawyering of cases. Agencies, I accept, will often chose to have their solicitor engage counsel with specialist expertise. This choice is not one that I think self-represented applicants should be expected to bear, even though the overall conduct of their proceedings may have been sufficient to lead to a ‘special circumstances’ finding. In the General Division of the Tribunal it is rare for applicants to appear with representation. I accept equally it is normal for respondents to appear with representation. If a party suffers a costs order, it should in my view normally be confined to the cost of the services of one lawyer. In my view the cases are relatively rare where the complexity of the proceedings in the General Division or the complexity of the issues justify the engagement of two lawyers. I certainly do not see this as such a case, although I accept that it might have been convenient for the agency to decide to handle the case in that way.

60 I do not propose to make a costs order that selects the costs said to have been incurred in respect of one or other of the lawyers. In this instance it is sufficient, I think, to simply allow half of the overall amount claimed for the two lawyers, as a way of reflecting the principle that the award should reflect the cost of services of one lawyer.

Order

The applicant pay the respondent’s costs of and incidental to the proceedings, fixed at $2,500.