Appeal Panel Denies Costs for Appellant’s Legal Challenge

The Appeal Panel denied the Respondent's application for costs, finding the Appellant's appeal had a tenable basis in law. The case involved an appeal against a decision regarding access to personal information under the Privacy and Personal Information Protection Act 1998.

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: [NAME_1] v Narrandera Shire Council (No. 2) (GD) [2011] NSWADTAP 32 Hearing dates: On the papers Decision date: 08 July 2011 Jurisdiction: Appeal Panel - Internal Before: Magistrate N Hennessy, Deputy President S Montgomery, Judicial Member E Hayes, Non-Judicial Member Decision: The Respondent's application for costs is refused. Catchwords: COSTS - whether fair to award costs of appeal - whether no tenable basis in fact or law Legislation Cited: Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Privacy and Personal Information Protection Act 1998 Category: Costs Parties: [NAME_1] (Appellant) Narrandera Shire Council (Respondent) Representation: Counsel M A Robinson (Respondent) [NAME_1] (Appellant - in person) [NAME_2] (Respondent) File Number(s): 109050 Decision under appeal Citation: KP v Narrandera Shire Council [2010] NSWADT 60 KP v Narrandera Shire Council [2010] NSWADT 206 Before: General Division File Number(s): 083362

REASONS FOR DECISION

Introduction 1APPEAL PANEL (N HENNESSY, LCM (DEPUTY PRESIDENT), S MONTGOMERY (JUDICIAL MEMBER), E HAYES (NON-JUDICIAL MEMBER)): Narrandera Shire Council has applied for [NAME_1] to pays its costs of proceedings in the Appeal Panel. The application is refused. This decision has been made 'on the papers' following written submissions from both parties: Administrative Decisions Tribunal Act 1997 ( ADT Act ), s 76. 2KP appealed to the Appeal Panel against a decision of the Tribunal under the Privacy and Personal Information Protection Act 1998 ( PPIP Act ). The Appeal Panel dismissed the appeal and affirmed the Tribunal's decision. 3The background to these proceedings is that on 26 February 2007 an employee of the Council wrote a 'confidential' internal memorandum to the General Manager. The subject of the memorandum was observations the author had made about [NAME_1]'s behaviour and her concerns about that behaviour. 4KP applied under the now repealed Freedom of Information Act 1989 ( FOI Act ) for access to a copy of the memorandum. [NAME_1] withdrew that application after Council agreed to provide him with a redacted version. Information in the memorandum that could lead to the identification of the author was deleted. Council states in its submission to the Appeal Panel on costs that the fact that [NAME_1] withdrew his application "preserved the exempt status of the memorandum". 5Subsequently [NAME_1] applied under the PPIP Act for a review of certain conduct relating to the collection, retention, accuracy and use of the personal information in the memorandum (the "conduct application"). The Tribunal concluded that because Council had not carried out an internal review of the conduct and [NAME_1] had not waited the necessary 60 days before applying to the Tribunal, the Tribunal had no jurisdiction to review the conduct identified in the conduct application. The Appeal Panel agreed with that conclusion. 6KP also applied to the Tribunal for access to the memorandum under s 14 of the PPIP Act (the "access application"). Section 14 requires Council to provide people such as [NAME_1] with access to personal information that it holds about them. The Tribunal ordered that Council give [NAME_1] another copy of the redacted version of the memorandum in order to fulfil its obligations under s 14. [NAME_1] did not appeal to the Appeal Panel against that decision. 7At the hearing before the Appeal Panel the only ground of appeal which [NAME_1] pressed was that the Tribunal had erred in law by not determining whether the conduct identified in the "conduct application" had breached various provisions of the PPIP Act , other than s 14.

Application for costs 8The general rule in the Tribunal is that each party pays his or her own costs: ADT Act , s 88. An award of costs may only be made if the Tribunal is satisfied that it is "fair" to do so. In determining that issue, the Tribunal is to have regard to specific matters as well as any other matter that it considers relevant. 9Council submitted that it was fair to award costs in this case because of the relative strength of the claims made by each of the parties and the fact that the claims made by [NAME_1] had "no tenable basis in fact or law": ADT Act , s 88(1A)(c). In support of that submission, Council says that none of the grounds of appeal identified by [NAME_1] in the original Notice of Appeal or in either of the two Further Notices of Appeal had any substance. 10The Appeal Panel found that the only ground of appeal on which [NAME_1] ultimately relied did not constitute an error of law. The Panel found that the Tribunal below had interpreted the PPIP Act correctly. Council had not conducted an internal review of the conduct identified in [NAME_1]'s conduct application. In those circumstances, [NAME_1] needed to wait 60 days from the date Council received that application before applying to the Tribunal for a review of the conduct. Because he did not do so, the Tribunal did not have jurisdiction to review the conduct. 11Council failed to respond to [NAME_1]'s conduct application. [NAME_1] then applied to the Tribunal. The Tribunal found that it did not have jurisdiction. That conclusion depended on the Tribunal making certain factual findings and interpreting both the PPIP Act and the ADT Act . [NAME_1]'s appeal against that decision was unsuccessful, relatively complex legal and factual issues were involved. We are not satisfied that [NAME_1]'s appeal had no tenable basis in fact or law or that the lack of merit of his appeal means that it is fair that he pay council's costs. 12Council also relied on a submission that, in the proceedings under the FOI Act, the Tribunal Member below "personally supervised and approved a redacted version of the 'exempt' document so as to maintain its status as an exempt document." Given that [NAME_1] withdrew the proceedings under the FOI Act , we do not accept that the document has any such status. The Tribunal made no finding to that effect. In any event, [NAME_1] did not proceed with his appeal against the Tribunal's decision under the PPIP Act to give him a further copy of the redacted version of the memorandum.

Order The Respondent's application for costs is refused.

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