Allanby v Commissioner of Police, NSW Police Force

Decision on the papers

1. On 4 December 2018, I made an order, with the consent of the parties, that the costs application be determined "on the papers."
2. Having received the parties' material, I have reconsidered whether the issues for determination in the costs application can be adequately determined in the absence of the parties by considering the written submissions and other documents or material lodged with or provided to the Tribunal (Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"), s 50(2)). I am satisfied that the issues can be adequately determined on the papers, in circumstances where the parties are both legally represented, have both provided the Tribunal with detailed submissions and the issues are relatively straightforward. There is a factual dispute, but neither party has requested that a hearing be held for the purposes of cross-examining a witness, and I am satisfied that the factual differences in the parties' evidence can adequately be resolved without a hearing.

Mr Allanby's costs application

1. Mr Allanby seeks an order for costs in the sum of $6,775.60 to cover costs from the preparation of his access application to the Tribunal's determination on costs.
2. Mr Allanby submits that there are special circumstances warranting the award of costs in his favour. He says that the Commissioner's decision to provide access to the information the subject of his application on 28 November 2018 "essentially accords with" the position of the Commissioner relayed in the telephone conversation with Mr Driscoll.

Consideration

1. The general rule is that each party to proceedings in the Tribunal is to pay the party's own costs (NCAT Act, s 60(1)). However, the Tribunal may award costs if it is satisfied that there are special circumstances warranting such an award (NCAT Act, s 60(2)). In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the matters set out in s 60(3) of the NCAT Act. For special circumstances to exist, there must be circumstances which are out of the ordinary, but they do not need to be extraordinary or exceptional (Bischoff v Sahad and Owners Corporation SP 62022 [2015] NSWCATAP 196 at [24]).

Telephone conversation between the parties

1. The applicant relied upon a telephone conversation between the parties' representatives in about May 2018 in support of his application for costs. The parties agree that pre-litigation conduct is a relevant factor, at least for the purposes of s 60(3)(g) of the NCAT Act (B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 5) [2010] NSWADTAP 21). It may also be a relevant factor in relation to the other paragraphs of s 60(3).
2. A file note of the conversation, apparently made by Mr Driscoll, states: "The Police note and accede to the decision of IPA and will release all docs sought." The applicant submits that the conversation took place "shortly after" his solicitor's letter to the Commissioner's representatives of 30 April 2018.
3. Matthew Smith has sworn an affidavit stating that he is the employee of the NSW Police Force who telephoned Mr Driscoll and spoke to him about making a new decision in respect of Mr Allanby's access application. Mr Smith also deposes that the telephone call most likely took place on 11 May 2018, because Mr Driscoll's letter requested a reply by that date and it is a Friday, a day Mr Smith works alone. Mr Smith's evidence is as follows: "Due to reading the IPC report and the original file I said to Mr Driscoll words to the effect that a new decision would be made and more information would be released to him. I don't believe I expressly said all documents would be released as I was unaware whether personal details of witness had been revealed in court, or whether any other consideration may apply. However, I recall having formed the opinion that more information could be suppled [sic] as the related criminal matter had been finalised."
4. Mr Smith explains that the email containing the Information Commissioner's report regarding Mr Allanby was inadvertently deleted from the email box shared by Mr Smith and his team members and, as a result, no new decision was made.
5. I accept Mr Smith's evidence. Mr Smith is a senior advisory officer at Infolink within the New South Wales Police Force. Infolink is responsible for administering the Police Force's responsibilities under the GIPA Act. It is unlikely that Mr Smith, being a senior officer in an information unit, would have given an undertaking to release all documents when he was unaware whether the personal details of a witness had been revealed in court.
6. I consider that the handwritten file note on which Mr Allanby relies is a less reliable indicator of what was said in the telephone conversation that Mr Smith's evidence, for the following reasons.
7. The file note is undated (or possibly illegibly dated), brief, does not identify the other party to the telephone call and was not the subject of a statement or of sworn evidence. Mr Allanby has not identified the author of the file note, although it may be inferred that it was probably Mr Driscoll. There is no evidence as to when the file note was prepared. The file note is very vague and could have been written after the conclusion of the telephone call (either immediately, later that day, or even on a different day). It includes some inaccuracies, such as a reference to the Information and Privacy Commission as the IPA, instead of the IPC. This is likely to be a misrepresentation as to what Mr Smith said, since Mr Smith (who would deal regularly with the IPC), is unlikely to have referred to it as the "IPA." It is quite possible that the sentence "The Police note and accede to the decision of IPA and will release all docs sought" is a summary of Mr Driscoll's recollection of what was said, possibly soon after the telephone conversation concluded. It is more likely than not, for reasons given earlier, that this reflects a misunderstanding of Mr Smith's comment that a new decision would be made and more information would be released.

Strengths of each party's claim

1. Mr Allanby relies upon s 60(3)(c) of the NCAT Act, which provides that the Tribunal may have regard to the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, when determining whether there are special circumstances warranting an award of costs.
2. Mr Allanby claims that the position taken by the Commissioner until the decision to release the documents was unreasonable. He says that, prior to that decision, the Commissioner effectively conveyed no material of any substance in response to his access request. It is more accurate to say that the Commissioner had provided Mr Allanby with information, but it was not the information in which Mr Allanby was particularly interested.
3. Mr Allanby said that the Commissioner conceded that this position was untenable in the telephone call with his solicitor. Given my findings about what was said in the telephone call, I do not accept this submission.
4. The Information Commissioner's review, in Mr Allanby's submission, made it clear that the Commissioner was in error in refusing to release the information sought. Mr Allanby submits that, considering the Information Commissioner's findings and the telephone concessions made by the Commissioner, together with the Commissioner's decision to release the documents, the Tribunal should find that the Commissioner's position was weak if not untenable.
5. When reviewing the decision made by the internal reviewer, the Information Commissioner found that: 1. the agency's decision that certain information was not held was justified; 2. disclosure of the information could reasonably be expected to reveal an individual's personal information and that this was a valid consideration against disclosure (see GIPA Act, s 14, table, cl 3(b)); 3. the agency should consider whether this personal information is publicly available; 4. the agency has demonstrated that disclosure of the information could reasonably be expected to prejudice the supply to it of confidential information that facilitates the effective exercise of its functions (see GIPA Act, s 14, table, cl 1(d)); 5. the agency has demonstrated that disclosure of the information could reasonably be expected to result in the disclosure of information provided to an agency in confidence (see GIPA Act, s 14, table, cl 1(g)); and 6. the agency has not clearly demonstrated the prejudicial effect to their investigative functions which could reasonably be expected to occur if the details of sequences and methods used by it were released, so the agency has not demonstrated that cl 1(f) in the table to s 14 of the GIPA Act is a valid consideration against disclosure of information.
6. It is therefore not correct that the Information Commissioner's review made it clear that the Commissioner was in error in refusing to release the information sought, as Mr Allanby claimed. On the contrary, the Information Commissioner found that only one public interest consideration upon which the Commissioner relied had not been justified. It remained open to the Commissioner to provide evidence and submissions to the Tribunal to demonstrate that cl 1(f) did apply.
7. I accept that the Commissioner is unlikely to have succeeded in maintaining the position that no additional information could be released. However, it is not the case that the Commissioner's position was so weak that, had the matter gone to hearing, the Tribunal would necessarily have decided that Mr Allanby was entitled to access all of the information sought. The Commissioner had a tenable position, at least in relation to some of the information sought. I would not describe the Commissioner's position as a whole as being "weak." As the Commissioner submitted, had the matter proceeded to hearing, the Tribunal would have had to determine the correct and preferable decision (Administrative Decisions Review Act 1997 (NSW), s 63). This would have required the making of an evaluative judgment, applying the public interest test prescribed by s 13 of the GIPA Act, unless the Tribunal was persuaded that none of the public interest considerations upon which the Commissioner relied was applicable. The outcome of that process is not a foregone conclusion.
8. Mr Allanby's submission that it was unreasonable of the Commissioner not to provide him with access to more information after the telephone conversation in May 2018 has some merit. The failure to make another decision occurred as a result of the email from Mr Allanby's solicitor to the NSW Police Force being inadvertently deleted. However, I do not think that this, of itself, gives rise to special circumstances warranting an award of costs.
9. It is relevant to consider the Commissioner's failure to make a new decision in its context. The Information and Privacy Commission completed its review on 21 February 2018. Mr Allanby had twenty working days after being notified of the review to apply to this Tribunal, unless the Tribunal extended time in its discretion (GIPA Act, s 101(2) and (4)). Mr Allanby's solicitors wrote a letter to the NSW Police External Information Access Unit on 30 April 2018 (well after the time for applying to the Tribunal had expired) asking the recipient to advise "whether you will heed the recommendations of the Privacy Commissioner." The letter asked for a response by close of business on 11 May 2018 and stated that, if the solicitors did not receive a response by then, they would file proceedings in the Tribunal seeking access to the information and costs.
10. The telephone call occurred on about 11 May 2018 in which Mr Smith agreed to make another decision and provide further information. At this point, Mr Smith could lawfully have refused to deal further with the matter. There is no evidence of Mr Allanby's solicitors taking any steps to follow up on Mr Smith's offer with the NSW Police Force before filing the proceedings on 19 September 2018, over four months later.
11. It is regrettable that Mr Smith did not arrange for another decision to be made, as agreed. The NSW Police Force bears responsibility for failing to make the decision when Mr Smith had undertaken to do so. However, in circumstances where Mr Allanby was already out of time to apply to the Tribunal for review, where his solicitors did not communicate again with the NSW Police Force to check on the progress of the decision, and where the Commissioner's original position was not entirely without merit, I do not consider that this gives rise to special circumstances warranting an award of costs. The Commissioner did not act unreasonably; his representatives acknowledged the oversight and sought to rectify it by issuing a supplementary decision soon after proceedings were commenced, and by consenting to an extension of time.

Common law position on costs where proceedings settle before hearing

1. Under the heading "Section 60(3)(c) Strengths of each party's claim," and under a separate heading, Mr Allanby relies upon the common law principles concerning the award of costs where a matter does not proceed to hearing.
2. Mr Allanby relies upon Becker v Gurr [2018] NSWSC 1717 to support its position that costs should be awarded "on the basis of a total capitulation by the Respondent." In Becker v Gurr, Darke J considered an application for indemnity costs, in circumstances where real property proceedings had settled before hearing, and said at [13]: "In my opinion this is a case where it can be stated with confidence that the plaintiff would have succeeded if the matter had proceeded to hearing (see Re the Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 625). The defendants have effectively capitulated in the face of the plaintiff's claim."
3. The Appeal Panel considered the award of costs where proceedings settle before hearing in Abdel-Messih v Wang [2018] NSWCATAP 185 at [17]. It made some comments about the award of costs in this situation on the counter-factual basis that the Tribunal did not have to be satisfied that special circumstances existed. It affirmed that, in this situation, the appropriate approach to the allocation of costs of proceedings which do not proceed to hearing, because they have been settled or rendered futile before determination, is that set out by McHugh J in Re Minister for Immigration and Ethnic Affairs ex parte Lai Qin (1997) 186 CLR 622 at 624-625.
4. His Honour said in the Lai Qin case (at 624-625) that the "court cannot try a hypothetical action between the parties" but that in some cases "the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action." McHugh J gave as an example an administrative law matter where it appears "that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation." Another circumstance in which costs may be awarded is where a judge is satisfied that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried, a situation "likely to be rare." If it appears that both parties have acted reasonably, "the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings."
5. The cases of Re Minister for Immigration and Ethnic Affairs ex parte Lai Qin (1997) 186 CLR 622 and Becker v Gurr [2018] NSWSC 1717 have relevance where proceedings settle before hearing and the "special circumstances" rule does not apply. (It is disapplied in some circumstances by r 38 of the Civil and Administrative Tribunal Rules 2014). However, where the Tribunal is considering whether there are special circumstances warranting an award of costs and, in particular, the relative strengths of the claims made by each of the parties, I do not consider that those cases are directly relevant. The statutory words in ss 60(2) and 60(3)(c) are, in my opinion, to be considered without applying a further gloss to them (see, for example, Beadle v Director-General of Social Security (1985) 60 ALR 225 at 228; Bayon v Bayon (2014) 69 MVR 360 at [49]; Axiak (by her tutor Axiak) v Ingram (2011) 59 MVR 505 at [28], [33]).
6. If I am wrong about this, however, I do not think that Mr Allanby would be entitled to costs, applying the principle in the Lai Qin case. This is because it cannot be stated with confidence that Mr Allanby would have obtained all of the information he sought, had the matter proceeded to hearing. Further, the Commissioner did not act unreasonably in exercising or refusing to exercise a power, meaning that the applicant had no reasonable alternative but to commence a litigation. Whilst the Commissioner was entitled to make a new decision following the Information Commissioner's recommendations, the Commissioner was not required to do so (GIPA Act, s 93). Further, by the time Mr Allanby's solicitors wrote to the Commissioner's representatives on 30 April 2018, Mr Allanby's review rights had expired (subject to the grant of leave). Mr Allanby's solicitors did not explain to the Commissioner in their letter why Mr Allanby had a reasonable excuse for the delay (GIPA Act, s 101(4)).

Other bases on which costs are sought

1. Mr Allanby submits that "the remaining considerations listed at section 60 CATA, to the extent that they are relevant, also assist in arriving at the conclusion stated above" (presumably, that special circumstances exist warranting an award of costs).
2. In the absence of particularisation of this claim, it is of little assistance to Mr Allanby. I have considered whether any of the specific matters raised by Mr Allanby give rise to special circumstances, either individually or cumulatively. I have found that they do not.

Costs incidental to proceedings

1. Given that I am not satisfied that special circumstances exist warranting an order for costs, it is not necessary for me to consider Mr Allanby's submission that he is entitled to costs dating back to the commencement of his access application on the basis that these early costs are incidental to the Tribunal proceedings or proceedings giving rise to the application (see NCAT Act, s 60(5)).

Conclusion

1. For the reasons given above, Mr Allanby's application for costs is refused.

Orders 1. The applicant's costs application is refused.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 March 2019