KP v Narrandera Shire Council (No 3)

[2010] NSWADT 239

CITATION:	KP v Narrandera Shire Council (No 3) [2010] NSWADT 239
DIVISION:	General Division
PARTIES:	APPLICANT KP RESPONDENT Narrandera Shire Council
FILE NUMBER:	093011
HEARING DATES:	23 March 2010
SUBMISSIONS CLOSED:	27 April 2010
DATE OF DECISION:	8 October 2010
BEFORE:	Wilson R - Judicial Member
CATCHWORDS:	Access to personal information held by an agency.Costs sought by respondent.
LEGISLATION CITED:	Privacy and Personal Information Protection Act 1998, s.14 & s.55(2)
REPRESENTATION:	APPLICANT In person RESPONDENT M Robinson, barrister J McAteer, for the Privacy Commissioner
ORDERS:	1.The Tribunal determines that it will take no action in relation to the matter before it 2. The costs application by the respondent is dismissed 3. The directions hearing listed for 21.10.10 is vacated.

REASONS FOR DECISION

1 The applicant commenced these proceedings pursuant to the Privacy and Personal Information Protection Act 1998 following an unsuccessful internal review application. The applicant has also commenced other proceedings in this Tribunal, under the same legislation, against the same respondent, being matter number 083362. These latter proceedings have been finally dealt with.

2 Prior to substantive hearing, the respondent brought summary dismissal applications, on several grounds, in relation to each of these proceedings, such applications being heard on 18.09.09. At hearing the parties requested determination of the summary dismissal applications on the papers filed, the applicant’s documents being marked as exhibits A1 to A4, and the respondent’s as exhibits R1 to R9. The parties agreed that these exhibits could be admitted in each proceeding, on the understanding that only materials relevant to each matter would be considered. Whilst a decision on the papers is often a convenient course it has the difficulty that the Tribunal is unable to discuss matters of concern, or interest, with the parties that may arise on perusal of the papers.

3 In the summary dismissal proceedings in the proceedings now under consideration, the Tribunal accepted the respondent’s argument that the Tribunal should exercise its power to take no action in the matter (s.55(2), see KP v Narrandera Shire Council [2010] NSWADT 61 ). However, no formal orders were made at that stage as the respondent had reserved its position in relation to costs. This costs application came on for hearing on 23.03.10. The parties requested the Tribunal to, by consent, decide this issue on the papers and without further hearing. Provision was made for the filing of further documents and submissions in due course. This was done in due course done.

4 However, in the interim the applicant brought an application for leave to contest the substantive issue in the Appeal Panel. Consequently, on 19.08.10 the Tribunal made further orders in which it declined to determine the costs issue pending the determination of the leave application in the Appeal Panel ( KP v Narrandera Shire Council [2010] NSWADT 207) and stood the matter over for directions on 21.10.10. The basis for this was to enable the applicant to seek a stay of the proceedings at first instance should he so wish. No such stay has been sought from, nor granted by, the Appeal Panel.

5 The respondent subsequent to these events has requested the Tribunal at first instance to make final orders in the proceedings upon the basis that this may well avoid further hearing, although this will depend, of course, upon the decision on appeal. The applicant has been advised of this request but has filed no submissions in this regard. The Tribunal at first instance has decided to act on this request and make formal orders and a determination as to costs. There are a number of reasons for this. The proceedings at first instance have not been stayed and, as the disputes between the parties are long standing, it is beneficial to have them determined as soon as possible. Also, the applicant has appealed the other decision in proceedings 083362 as of right so that convenience suggests that these current proceedings should be put on the same footing, if that be possible. In this regard the Tribunal notes that the application in the Appeal Panel is by way of leave and the applicant/appellant will need to address the question whether these final orders can be competently raised in those appellate proceedings. This will be a matter for the Appeal Panel.

6 The Tribunal notes, for completeness, that whilst the applicant has submitted that the Appeal Panel has stayed the appeal pending final orders at first instance, this in fact is not correct, as a perusal of the Appeal Panel file shows.

7 The reasons why the Tribunal has decided to take no action in the proceedings are set forth in the decision of 03.03.10 (KP v Narrandera Shire Council [2010] NSWADT 61) and no further discussion is necessary. Therefore the Tribunal will make final orders to this effect.

8 This leaves the question of costs for final determination and orders. Practice Note Number 22 sets out the applicable legislation and relevant considerations. The general rule is that each party should bear its own costs of the litigation. This is consistent with the role of the Tribunal, which is to provide an independent determination of issues as part of the overall administrative process that is engaged when a person alleges that an agency has acted contrary to privacy principles. The Tribunal’s determination is the final step in the administrative process the hallmark of which is the Tribunal’s independence from the governmental institutions that conduct the initial investigations and determination. The legislation accepts, however, that there may well be circumstances in which it is apposite to make a costs order, but the Tribunal is only empowered to do this where it is able to find that it would be fair to do so (s.88(1A) Administrative Decisions Tribunal Act 1997). This finding is a condition precedent to the making of any costs order. The legislation also specifies relevant considerations that must be taken into account, although provision is made that the Tribunal may take into account any matter that it considers to be of relevance. However, even if this condition precedent is satisfied, the better view is that the decision to award costs is still discretionary.

9 The respondent submits, in relation to these proceedings, that the Tribunal’s finding that it was an inescapable inference that the applicant, upon making complaint to the Ombudsman, intended that the Ombudsman would undertake enquiries following the complaint (submissions penultimate paragraph page 2). From this it is argued that the bringing of the proceedings was an abuse of process, or something quite close to an abuse of process. Therefore, the respondent argues, it would be fair to order that the applicant pay its costs of the proceedings. Although not mentioned in the submissions, the respondent would no doubt rely, in this regard, upon the Tribunal’s additional finding that any reasonable person would understand that the respondent would have offered an explanation of its conduct to the Ombudsman and, more likely than not, would have needed to disclose information it had to hand concerning the applicant (KP v Narrandera Shire Council [2010] NSWADT 61 paragraph 11).

10 The Tribunal’s finding as just noted formed the basis for the Tribunal to exercise its discretionary power to decide to take no action in the matter. Inherent in the exercise of this discretionary power is the value judgment that the circumstances warranted the exercise of this power in the way stated. However, minds may well differ on this point and others may well take a different view of the significance of the circumstances at hand. Consequently, the applicant could have, and would have been reasonably entitled to, taken a different view. Also, whilst the Tribunal was satisfied as to the taking of the course that it did, the Tribunal is not of the view that such findings suffice to establish that the commencement of the proceedings was an abuse of process, or something akin to it.

11 Therefore, and for these reasons, the Tribunal is not satisfied that it would be fair to make an award of costs against the applicant in favour of the respondent in these proceedings. The respondent’s costs application will therefore be dismissed.