Court rules on costs against successful privacy complainant

I'm not sure if those who challenge agency decisions concerning privacy (and FOI) in the NSW ADT realise the dangers of a cost order against them if the agency concerned contests an ADT decision, and takes the matter onto the Supreme Court or the Court of Appeal.

We reported some weeks ago that the NSW Court of Appeal found that the ADT had erred in law in finding the Department of Education and Training was responsible for a breach of the disclosure principles in the NSW Privacy and Personal Information Protection Act when a teacher, acting for his own private purposes, disclosed information about a student (MT) to another organisation. See Department of Education and Training v MT (2006) NSWCA 270.

The Court of Appeal did not consider or overturn the Tribunal finding that the Department had, in allowing access to information by the teacher, breached the data security standard by failing to safeguard the information from unauthorised disclosure and misuse.

However the decision upheld the Department's arguments (on grounds that were only incidental to any argument put to the Tribunal) regarding breach of the disclosure principles, and following usual practice, the Court of Appeal awarded costs against MT.

The overall outcome was that the Court of Appeal found there was only a breach of one principle, not two. MT didn't contest the ADT Appeal Panel decision, but ended up on the wrong end of a cost order.

In this latest development in the long running saga, MT sought to vary the decision by going back to the Court of Appeal to seek deletion of the order for costs. The upshot was the Court of Appeal refused the application, decided that there were no grounds for varying usual Court rules, but agreed to the issue of a certificate to MT (if otherwise qualified) under the Suitors Fund Act. The effect of this is that her costs may be reimbursed, after another bureaucratic process, by the Director General of the Attorney General's Department.

So if a government agency isn't happy with an ADT Appeal Panel decision, takes the matter off to court on a question of law and wins, the court will order costs of those proceedings against the other party, even though the proceedings started off in a "no costs" jurisdiction, and through no fault of the applicant, end up in the courts. Of course, the court has discretion to grant a certificate that might, at the end of the day save the complainant/applicant from actually paying up.

In the MT case, I notice the Department of Education and Training told the Court of Appeal that it would not support a variation of the order for MT to pay costs, although it didn't oppose the granting of a certificate. Applicants - in this case, almost an innocent bystander, and a 21 year old with a disability - have to be grateful for small mercies

Its a tough game when you take on a government agency and end up in courts.