Coleman v Medical Council of NSW  NSWCATAD 207
Read the decision here: Coleman v Medical Council of NSW  NSWCATAD 2017
The Tribunal considered an application for an order for costs by Dr Coleman (applicant) in proceedings on the review of a decision by the Medical Council of NSW (respondent), under the Government Information (Information Access) Act 2009 (GIPA Act). The decision under review concerned the overriding secrecy laws in clause 1 of Schedule 1 of the GIPA Act with respect to the Health Care Complaints Act 1993, and ‘excluded information’ in clause 6 of Schedule 1 with respect to information of the Health Care Complaints Commission (HCCC). Dr Coleman had applied to the Tribunal under section 100 of the GIPA Act as a person aggrieved by the decision by the Medical Council to release information to the access applicant, to which Dr Coleman had objected as a third party because this information related to complaints and investigations about him. During the Tribunal proceedings, the Medical Council re-determined its position and considered that the information was information under the GIPA Act for which there is a conclusive presumption of overriding public interest against disclosure by clause 1 of Schedule 1, and is excluded information under clause 6 of Schedule 1. The parties reached a consent position that no documents containing the information were to be provided to the access applicant, with the Tribunal directing the Council to notify the access applicant of the proposed consent orders. With respect to the application for seeking costs, Tribunal was not satisfied that the respondent had prolonged unnecessarily, the time taken to complete the proceedings, or that it failed to uphold the model litigant obligations. The Tribunal was not satisfied that there were special circumstances warranting an order for costs pursuant to section 60(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act).
What you need to know
The Tribunal’s findings on costs (at ) was based on the context of the large number of documents, the extended time period they covered, the requirements of clause 1 and clause 6 of Schedule 1, and the approach adopted by the applicant in discharging the obligation under section 105(2) of the GIPA Act. The Tribunal reasoned that the Council was entitled to consider its position- and its notification of what that position was - and its offer of settlement came before the parties had filed and served all their evidence and submissions.
With respect to the decision made under the GIPA Act, the Tribunal cautioned that where the information is held by an agency that is not listed in Schedule 2 (in this case, the Medical Council), care has to be exercised in considering how clause 6 of Schedule 1 and clause 2 of Schedule 2 apply to the information.
The Tribunal acknowledged the external review report by the Information and Privacy Commission (IPC) which discussed that the basis on which the information is held is relevant to determining whether the information has been provided in the exercise of complaint handling functions listed in clause 2 of Schedule 2, that is, whether there is the direct chain of causation.
Clause 1 of Schedule 1 Overriding secrecy laws (Health Care Complaints Act 1993)
Clause 6 of Schedule 1 Excluded information
Schedule 2 Excluded information of particular agencies
Schedule 4 definition of ‘excluded information’
Review requirements and jurisdiction
Section 100 Administrative review of decision by NCAT
Section 105(2) onus on the applicant for review of a decision to provide access to government information
Health Care Complaints Act 1993
Section 99B – Disclosure of information to certain persons or bodies
Section 60 Costs; section 60(3) special circumstances warranting an aware of costs
In June 2017, the Medical Council received an access application under the GIPA Act for information concerning Dr Coleman’s personal information and professional interests, and in accordance with section 54, consulted Dr Coleman who objected to release of the information. Dr Coleman argued that by virtue of clauses 1, 5 and 6 of Schedule 1 to the GIPA Act, there was a conclusive presumption against disclosure; and also argued 11 public interest considerations against disclosure. The Medical Council conducted an internal review and affirmed its original decision to release the information. In January 2018, Dr Coleman applied to the Tribunal for review of that decision, which was remitted for reconsideration. In March 2018, the Council notified its reconsidered decision and the proceedings were withdrawn and dismissed, after which Dr Coleman applied to the IPC for review. The IPC notified its decision on 13 August 2018, recommending that the decision under review was not justified and that the Council should make a new decision. On 24 August 2018, the Council notified Dr Coleman that it had decided not to undertake a fresh determination, and on 21 September 2018, Dr Coleman applied to the Tribunal for review. On 18 June 2019, orders were made by consent to set aside the decision to provide access to the documents, and the decision made that none of the documents subject to the proceedings be provided to the access applicant. Dr Coleman applied for an order for costs of the proceedings, from 3 November 2017 to 20 March 2019.
The Tribunal (at -) outlined the general rule in relation to costs in the Tribunal under the CAT Act, which is that unless special circumstances are established, the parties pay their own costs: section 60(1). Subsection 60(3) lists the matters to which the Tribunal may have regard in determining whether there are special circumstances. Costs can include the costs of, or incidental to, the Tribunal proceedings; and the costs of, or incidental to, the proceedings giving rise to the application: section 60(5).
In this case, the applicant argued their application for costs on the basis that the Medical Council prolonged unreasonably the time taken to complete the proceedings (section 60(3)(b) of the CAT Act), and also declined to re-determine its decision after the IPC’s finding that there was a conclusive presumption against disclosure (at ).
In interpreting ‘special circumstances’ under section 60(3), the Tribunal (at -) referred to previous Tribunal authority:
Special circumstances are circumstances that are out of the ordinary, but need not be those which are exceptional or extraordinary: Megerditchian v Kurmond Homes Pty Ltd  NSWCATAP 120 at ; Commissioner for Fair Trading v Edward Lees Imports Pty Ltd (No 2)  NSWCATAP 222 at ; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley  NSWCATAP 21 at .
As a general proposition, the term ‘proceedings’ as used in section 60, refers to the process set in motion, or commenced, by lodging an application or notice of appeal, and that process includes the steps taken by the Tribunal to hear and determine whether to grant the relief sought in the application or notice of appeal, as well as any interlocutory or ancillary steps: Allen v TriCare (Hastings) Ltd  NSWCATAP 25 at .
The Tribunal also considered the applicant’s further contention (at ) that as a party to previous proceedings in Whyte v Medical Council of NSW  NSWCATAD 190 and Yee v Medical Council of New South Wales  NSWCATAD 370, the Council should have been clear from the outset that there was no place for a balancing of competing public interests, and that the reason for the present proceedings was because neither of the Council’s internal review decision makers were aware of the relevant authorities, or else failed to apply them consistently in their determinations.
The Tribunal commented (at ) that the Whyte and Yee decisions acknowledge the complexity of the regulatory scheme involving the HCCC and the professional councils established for each of the relevant health professions, and the operation of both the Health Care Complaints Act and the Health Practitioner Regulation National Law (NSW). The Tribunal (at ) considered that:
… There is no dispute that the Council is an ‘agency’ for the purposes of the GIPA Act; however, it is not the HCCC, and care has to be exercised in considering how the provisions in clauses 1 and 6 of Schedule 1, and clause 2 of Schedule 2, apply to information held by it. As acknowledged by the IPC in its review report of 13 August 2018 at paragraph , the basis on which information is held by the Council is relevant to determining whether that information has been provided in the exercise of the HCCC’s complaint handling functions; that is, whether there is “the direct chain of causation” referred to in Sinclair v Psychology Council of NSW  NSWCATAD 8 and Yee. The question of whether there has been consultation as required by clause 6(2) of Schedule 1 may require consideration, as was the case in Whyte.
In consideration of the review decision, the Tribunal opined (at ) that the matter was not straightforward, and that it was not obvious that all documents sought would fall within the clause 6 of Schedule 1 and clause 2 of Schedule 2. The Tribunal stated (at ) that it was not satisfied that it can be said to have been clear from the outset that the decisions in Whyte and Yee would be determinative of all the issues.
In this regard, the Tribunal (at ) referred to the IPC review report that:
… it was unclear whether the information identified by the applicant as “excluded information” was communicated to the Council by the HCCC in the exercise of its complaint handling functions or whether it simply related to the Council’s dealings with the HCCC; or whether the Council approached the HCCC after receiving the request for information. That suggests that whether there was the “direct chain of causation” between the HCCC and the Council found in Sinclair and Yee so as to include documents held by the Council as excluded information attracting the conclusive presumption in cl 6 of Sch 1 is an issue that would require consideration.
The Tribunal also noted (at ) the Information Commissioner’s submissions to the Tribunal that:
… the requirement in Schedule 2 is that the information “relates to” a specified function. Some of the documents listed in the Schedule are dated before the HCCC came into existence, with effect from May 1994, which may (or may not) have implications for the application of the definition of “excluded information” which relates to functions of the HCCC as the specified agency.
The Tribunal refused the application for an order for costs because it was not satisfied that there were special circumstances warranting an order for costs. The Tribunal made an order that each party bear its own costs of the proceedings.