Bayne v NSW Department of Premier and Cabinet

Application for costs

1. The power to award costs is contained in s 60 of the NCAT Act. Subsections 60(1) to (3) provide: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) 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, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant.
2. As can be seen, the general rule in the Tribunal is that each party pay its own costs. However, the Tribunal may order a party to pay costs if satisfied that there are special circumstances warranting such an order. This means there must be circumstances which are out of the ordinary but not necessarily extraordinary or exceptional: see Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]; Bischoff v Sahade & Owners Corporation SP 62022 [2015] NSWCATAP 196 at [24].
3. It does not necessarily follow that because some factors under s 60(3) are established, a costs order should be made. It is still "necessary for the Tribunal to weigh whether those circumstances are sufficient to amount to 'special' circumstances that justify departing from the ordinary rule that each party bear their own costs": Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [81].
4. The discretion to award costs must be exercised judicially having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs (eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [37] and [48]; Nguyen & Anor v Perpetual Trustee Company Ltd; Perpetual Trustee Company Ltd v Nguyen & Anor (no 2) [2016] NSWCATAP 168 at [16]).

Material to be taken into account in respect of costs application

1. The respondent's letter of 8 July 2016 sets out the basis of its costs application and, in that letter, the respondent seeks to rely upon its earlier submissions on the summary dismissal application. I have taken the letter and those submissions into account. I have also taken into account the respondent's letter to the Tribunal of 29 August 2016 which I take to contain the submissions it filed in accordance with the timetable.
2. The applicant filed both submissions and evidence, some of it substantially after the time she had been ordered to file her submissions. There were no orders to file or serve evidence; the orders were limited to the filing of submissions.
3. There is a question as to whether I should take into account evidence filed by or on behalf of the applicant and/or submissions filed by or on behalf of the applicant after the time for filing her submissions had passed, and after the Department had filed its submissions.
4. On 18 July 2016, a day after the consent orders had been made, a Mr Simon Long sent a letter to the Tribunal in support of the applicant's position that she should not have to pay costs. There is no indication on the face of the letter that it was copied to the Department. The letter stated that Mr Archer Field had left a note on Mr Long's desk at 5.48am on 6 June 2016 asking Mr Long to advise the Tribunal that Mr Field would be unable to attend a directions hearing the following morning. Mr Long sent a facsimile to the Tribunal at 4.05pm that afternoon asking the Tribunal to schedule the directions hearing "for after lunch on Thursday."
5. I have decided not to take into account this letter for a number of reasons. First, there was no order for the filing and service of evidence. Had there been such an order, the Department may have wished to have an opportunity to cross examine any witness put forward by the applicant, such as Mr Long and it may have wished to rely upon evidence of its own. I note that the orders concerning the filing and service of submissions on costs were consent orders. Secondly, it would be a breach of procedural fairness to rely upon this letter in circumstances where it is unclear whether the Department received it.
6. Even if I had taken the letter into account, it would not have assisted the applicant. The applicant had not applied to be represented by an agent as at 6 June 2016, and it was the applicant's responsibility to apply within a reasonable time to adjourn the planning meeting, or to ensure that someone else did so, if she was unable to attend.
7. The other material filed by the applicant is as follows.
8. On 19 July 2016, Robert Funke, who described himself as "Secretary," filed a 98-page document in the proceedings, stating that the applicant and the "JMA parties" had asked him to respond to the Crown Solicitor's letter of 8 July 2016 seeking costs. Attached to this document was a 28-page document apparently written by an organisation entitled "Counter Corruption Analysis" which purported to relate to a matter which had been before the Administrative Decisions Tribunal.
9. I have had regard to the 98-page document, insofar as it is relevant to the applicant's costs application and constitutes submissions rather than evidence. However, I have not had regard to the "Counter Corruption Analysis" document, which constitutes evidence. I do not regard this document as being relevant to the costs application and, as indicated above, there was no direction for the filing and service of evidence.
10. The applicant filed further material on 23 August 2016. I am prepared to have regard to it only insofar as it constitutes submissions relevant to the Department's costs application, even though it was filed a week late. The material was primarily concerned with the substance of the application which the applicant had, by this time, withdrawn. For example, it contains a request to "NCAT to use its legal powers under the Act to refer evidence of section 112 to the appropriate government department or agency." Section 112 of the GIPA Act permits the Tribunal to refer certain improper conduct of an officer of an agency to the relevant Minister. An order under s 112 was sought in the substantive application.
11. On 20 September 2016 and 27 September 2016, further material was filed on behalf of the applicant in the Tribunal. Both of these documents were filed more than a month after the applicant had been ordered to file her submissions. The respondent wrote to the Tribunal on 20 September 2016 stating that the material filed on behalf of the applicant on that date was not relevant to the issue of costs.
12. The material filed on 20 September 2016 was a letter signed by Archer Field, in the purported capacity of the applicant's agent. The applicant had filed a notice of representation by legal practitioner or agent on 23 August 2016, after she had withdrawn her substantive application and after the timetable for costs submissions had been made, naming Archer Field as her agent. Mr Field is not a legal practitioner and the Tribunal did not give leave for the applicant to be represented by an agent (see NCAT Act, s 45(1)).
13. The applicant did not apply for leave to file further submissions. A substantial part of the letter of 20 September 2016 is concerned with factual matters in support of the application the applicant withdrew. Whilst there is some recitation of provisions in the GIPA Act, the submissions do not respond to the issues raised in the Department's costs application. At the time this letter was sent to the Tribunal, the matter was reserved. I am not prepared to take the submissions into account. However, even if I did take them into account, they would not assist the applicant, as they do not deal with the issues relevant to costs which were raised by the Department, such as the contention that the Tribunal does not have jurisdiction to determine applicant's substantive application.
14. The letter to the Tribunal of 27 September 2016 is signed by Mr Funke and commences "I act for the applicant," notwithstanding that the applicant had filed a document purporting to appoint Mr Field as her agent. The letter contains some factual material. However, it is the only document filed by the applicant which focuses to any degree on the applicant's costs application.
15. For the following reasons, I have decided not to take this document into account. First, it was not written by the applicant or the person she sought to appoint as her agent and there is nothing to demonstrate that she has given authority to Mr Funke to communicate with the Tribunal on her behalf. Secondly, it was filed more than a month after she was required to file her submissions, after she had already filed two sets of material (on 23 August and 20 September 2016) and after the Department had filed its submissions. There was no order allowing her to respond to the Department's submissions. Thirdly, whilst peripherally relevant to the costs application, it is generally only relevant in that it relies upon new evidence concerning the applicant's non-attendance at the planning meeting. There was no order allowing the applicant to file evidence.
16. Even if I had have taken into account the letter of 27 September 2016, it would not have assisted the applicant. The explanation for the non-attendance of the applicant's agent at the planning meeting is unsatisfactory, particularly as the applicant had not applied to be represented by an agent at that time. The letter of 27 September 2016 refers to steps taken on the day before the planning meeting to notify the Tribunal and the Information Commissioner's representative of the applicant's non-attendance and the non-attendance of her "agent" at the planning meeting the following day. Except in cases of urgency, more than a day's notice is usually required when a party applies to adjourn a planning meeting.

Consideration of costs application

1. I am satisfied that the applicant conducted the proceedings in a way that unnecessarily disadvantaged the Department within s 60(3)(a) of the NCAT Act, by failing to attend the planning meeting of 7 June 2016, then failing to inform the Department of its intention to withdraw the proceedings until after the Department had filed submissions on its summary dismissal application. I note that Mr Funke sent a letter to the Tribunal which was received by the Tribunal on 18 July 2016, stating that the applicant would be overseas on 19 July 2016. However, the applicant did not apply in this letter for an adjournment of the planning meeting or make adequate arrangements for another person to attend in her place. Any arrangements for Mr Field to attend, either in person or by telephone, were unsuccessful.
2. A planning meeting or case conference provides an opportunity for parties to narrow the issues in dispute and to explore possibilities for resolving a dispute. An hour is generally allocated for this purpose. This gives the parties time to raise, in the presence of a Tribunal member, any jurisdictional issues, or other issues which may be able to be resolved by consent. In this case, had the applicant attended the planning meeting, this would have allowed the Department to explain to her why it said the application was outside the Tribunal's jurisdiction or misconceived. She may then have wished to seek advice about this, or may have decided at that point to withdraw the application, and the Department would then have been saved the costs of making the summary dismissal application and submissions concerning it.
3. The applicant's expressed reasons for withdrawing the application were that she did not have the time or resources to proceed with the matter. She did not explain why she could not have made this decision prior to the respondent filing its summary dismissal application or its submissions on that application.
4. I am also satisfied that the claims made by the applicant were misconceived (NCAT Act, s 60(3)(e)), in that the Tribunal had no jurisdiction to determine them. The Tribunal has no jurisdiction to make orders concerning s 71 and 72(1) of the NCAT Act, or concerning s 120 of the GIPA Act, being offence provisions which are to be dealt with summarily before the Local Court (NCAT Act, s 76, GIPA Act, s 128). The Tribunal's jurisdiction to make civil penalty orders concerning the contravention of a Tribunal order (s 72(3) of the NCAT Act) is only enlivened if an authorised official applies for such an order (NCAT Act, s 77(2)). The applicant is not an authorised official. Accordingly, the Tribunal did not have jurisdiction to make the orders sought by the applicant under ss 71 or 72 of the NACT Act or s 120 of the GIPA Act.
5. The applicant also sought, in her application, an order "determin[ing] whether JCRT or DPC are guilty under [section] 73" of the NCAT Act. Section 73 provides, broadly, that the Tribunal has the same powers as the District Court would have in relation to a contempt of the District Court, if it appears that a person is guilty of contempt of the Tribunal.
6. The applicant's grounds for her application for contempt orders indicate that she is alleging the Department "may have acted improperly" in not providing documents which it had been ordered to provide on 10 May 2013 in earlier proceedings in the Administrative Decisions Tribunal. The applicant has not identified in her application with any specificity the orders said to have been contravened and the respondent contends that the Tribunal did not make any orders on that date. The respondent suggests that the relevant matter had been remitted to the Department and that the "orders" referred to by the applicant were in fact recommendations made by the Tribunal whilst the matter was remitted. The Tribunal does not propose to determine this question (which depends on evidence) in the context of determining the costs application.
7. There is no provision in s 73 of the NCAT Act for a person to apply to the Tribunal for a contempt order at all, let alone in respect of proceedings which have been concluded. Further, there is no power in s 73 to make orders in respect of proceedings in the former Administrative Decisions Tribunal. The applicant did not point to any savings or transitional provision which permits her to apply for an order concerning contempt of that tribunal or for this Tribunal to make such an order. Section 73 only concerns contempt of the Civil and Administrative Tribunal.
8. For these reasons, I find that the Tribunal had no power to hear and determine the applicant's purported application for an order under s 73 of the NCAT Act.
9. Section 112 of the GIPA Act permits the Tribunal to bring a failure of an agency officer to act in good faith to the relevant Minister, where the Tribunal forms the opinion that this failure has occurred during the course of an administrative review. It is an own motion power and does not confer any right to make an application to the Tribunal for such a referral. The Tribunal did not have power to hear and determine the applicant's purported application under s 112.
10. The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under the NCAT Act or any other legislation (NCAT Act, s 28(1)). For reasons given above, the applicant's application was for orders the Tribunal did not have jurisdiction to make under the NCAT Act, the GIPA Act or any other legislation. Accordingly, the application was entirely misconceived (see NCAT Act, s 60(3)(e)).
11. It is not necessary for me to decide whether the applicant's claims had no tenable basis in fact or law (NCAT Act, s 60(3)(c)), in circumstances where the Tribunal had no jurisdiction to determine any of those claims.
12. As the respondent has acknowledged, it is relevant to take into account that the applicant was self-represented when deciding whether special circumstances exist for the purposes of s 60 of the NCAT Act. Many self-represented litigants do not have a good understanding of jurisdictional issues or of the Tribunal's procedures and some allowance needs to be made for this. However, the Tribunal finds that there are nevertheless special circumstances warranting an order of costs in this case.
13. When an individual is making serious allegations concerning contempt of the Tribunal, the commission of offences by others and failure to act in good faith, it is particularly important to ensure that the Tribunal has power to deal with the allegations, particularly when the alleged conduct occurred several years ago. The applicant commenced proceedings making these serious allegations, apparently without taking any steps or any adequate steps to ensure that the Tribunal could make the orders she sought. She then failed to appear at the first planning meeting, or to seek an adjournment of that planning meeting, which would have provided an opportunity for jurisdictional issues to be discussed. Subsequently, she waited until the respondent had filed submissions on its summary dismissal application before withdrawing the matter for the stated reason that she did not have the time or resources to pursue it. This indicates a failure to seriously consider the impact of the proceedings upon the respondent and its officers, from the point of view of costs, time and reputation, before commencing the proceedings, or while they were on foot.
14. I am satisfied that there are special circumstances warranting an award of costs, having regard to the applicant's conduct of the proceedings in a way that disadvantaged the Department and the circumstance that the proceedings were misconceived (NCAT Act, s 60(3)(a) and (e)). The purpose of the costs order is to compensate the Department for the costs it has incurred, not to punish the applicant: Latoudis v Casey (1990) 170 CLR 534 at 543; Oshlack v Richmond River Council (1998) 193 CLR 72 at 97.

Orders

1. The Crown Solicitor informed the Tribunal of the amount of the costs claimed by the Department (being $4,575.35), but there is no evidence as to how those costs were calculated and the applicant has not had an opportunity to make submissions about the amount of costs incurred. Accordingly, it would not be consistent with procedural fairness for me to order the applicant to pay the amount claimed by the Department. Instead, I order that the applicant is to pay the first respondent's costs of the proceedings, in an amount not exceeding $4,575.35, as agreed or assessed.
2. It is also necessary to formally dispose of the proceedings by making an order under s 55(1)(a) of the NCAT Act dismissing the proceedings on the basis that the applicant has withdrawn the application to which the proceedings relate. 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: 18 October 2016