Brown v Wingecarribee Shire Council

NCAT Administrative and Equal Opportunity|2020-09-09

Introduction

On 9 April 2020, reasons were published in Brown v Wingecarribee Shire Council [2020] NSWCATAD 102, affirming the decision of the respondent Council to provide access to two reports only by way of inspection.
The Council subsequently applied for an order for costs. The Tribunal made directions for the filing and service of submissions and evidence on the Council's application, with such submissions to address whether it was appropriate for the Tribunal to determine the Council's application on the papers.
The costs sought by the Council are costs for the work performed by its general counsel, Mr Lacy, in accordance with the principle recognised in Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333; see also Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 93 ALJR 1007 at [47], [50]. The Council also seeks an order for costs in a fixed sum. For the reasons set out below, it is appropriate to order that the applicant pay the respondent's costs in the sum of $1750.

Costs - applicable law

Section 60 of the NCAT Act provides: 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. (4) If costs are to be awarded by the Tribunal, the Tribunal may - (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (5) In this section - "costs" includes - (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
The principles relevant to the discretion to award costs were recently and conveniently summarised by Principal Member Pearson in ENN v Commissioner of Police (No.2) [2020] NSWCATAD 145 at [10]-[12]: [10] The general rule in relation to costs in the Tribunal is that s 60(1) of the NCAT Act provides that each party is to bear its own costs. Section 60(2) provides the Tribunal with discretion to award costs if it is satisfied that there are special circumstances warranting such an order. In deciding whether there are special circumstances, the Tribunal may have regard to the factors in s 60(3), which reads as follows: (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. [11] Special circumstances are circumstances that are out of the ordinary, but need not be those which are exceptional or extraordinary: Edwards v Commissioner for Fair Trading, Department of Customer Service (Costs) [2019] NSWCATAP 249 at [9]; Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]; Commissioner for Fair Trading v Edward Lees Imports Pty Ltd (No 2) [2019] NSWCATAP 222 at [8]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32]. [12] If satisfied that there are special circumstances, the Tribunal must further be satisfied that they are circumstances "warranting an award of costs": Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103. The exercise of the discretion requires the Tribunal "to weigh whether those circumstances are sufficient to amount to 'special' circumstances that justify departing from the general rule that each party bear their own costs": BPU v New South Wales Trustee and Guardian (Costs) [2016] NSWCATAP 87at [9].

Findings of Fact

The following findings of fact are taken from the unchallenged evidence of the Council.
On 25 October 2019, the Council made its internal review decision, which was provided to the applicant. In the internal review decision, the Council upheld its original decision to provide partial access to the reports, with the form of access to be by way of inspection only and not involve the provision of physical or electronic copies. Council justified its decision as to the form of access by explaining in some detail that: 1. the reports were protected by copyright; 2. the Council had consulted the authors of the reports and each author had objected to the release of a copy of their report; 3. in the circumstances, Council was not able to provide a copy of the reports because to do so would involve an infringement of copyright ; 4. in earlier decisions involving similar issues - namely Amos v Central Coast Council [2018] NSWCATAD 101 and Sandy v Kiama Municipal Council [2019] NSWCATAD 49, the Tribunal had found in favour of the respondent councils and held that they could not release copies of documents subject to copyright.
On 13 November 2019 the applicant commenced this proceeding. The Council did not engage outside lawyers and Mr Lacy had carriage of the matter on behalf of the Council.
On 17 December 2019 the first case conference was held, conducted by a Senior Member Higgins. Senior Member Higgins ordered that there be a further case conference on 28 January 2020. The notes to the Order made that day included: The parties agree that the only matter in issue is the decision of the respondent in regard to the form of access of the information for which the applicant sought access … The respondent granted access to the information but refused to grant access in the form requested (i.e. copy) on the grounds the information was copyright - hence access by view was granted. The applicants are to consider whether they will pursue the application before the next case conference date and if they do not wish to proceed they will advise the Tribunal and the respondent accordingly.
Mr Lacy's account of that case conference is as follows: On 17 December 2019, I appeared for Council (assisted by two Council officers namely the decision maker of the original GIPA application and the decision maker on the internal review application) in a case conference before Senior Member Higgins. At the case conference, I carefully explained to the Applicant that, in my view, his application was doomed to fail as there was clear jurisprudence of this Tribunal with similar facts and that this Tribunal has consistently affirmed decisions of Respondent Councils to provide view only access to information that is protected by copyright. I took the Applicant through said jurisprudence including the decisions referred to by the decision maker of the internal review (including Sandy and a Campbelltown decision had had been recently published and which I had only just read on the train on the way into the CBD). Noticing too that the Applicant was not legally represented by the Solicitor who was advocating on his behalf in relation to the foreshadowed legal proceedings against Council, (and picking up on the Tribunal Member's comments to the Applicant that he could obtain information via discovery or subpoena if legal proceedings were actually commenced) I asked the Applicant if his Solicitor specifically wanted hard copies of the documents to provide him with legal advice. In his response to my enquiry, the Applicant indicated that his Solicitor had not asked him to obtain hard copies (or to make the Application to the Tribunal) but that he wanted hard copies himself because they were "for his own interests". I also explained to the Applicant that Council was not trying to hinder him from obtaining access to information. I carefully pointed out that Council had, in fact, make a decision to provide him with access to the information and that he had, in fact, already accessed it. I explained to the Applicant that the role of the officers who determined the GIPA application (and internal review) was to properly and lawfully implement the provisions of the legislation that were relevant to his application. I explained to the Applicant that it would be unlawful for Council to provide him with hard copy documents because, to do so, would infringe copyright. I also explained that, because Council officers had specifically asked the copyright owners for permission and they both refused, Council had to proceed on the basis that the copyright owners would be entitled to take legal action against Council for infringing their copyright and that they might actually do so. I explained to the Applicant that I was specifically aware that the Council officer who determined the internal review always does so according to law and that Council adopts and embraces the purpose of the GIPA Act by going out of its way to provide unhindered access to government information but in a manner that it lawfully can. To that end, and with instructions from my officers, I indicated to the Applicant that the Council would be more than willing to provide him with an opportunity to re-inspect the documents at Council chambers. I indicated that, subject to normal business hours and other operational requirements the Applicant could stay at Council as long as he needed, make whatever notes etc and that he could bring with him any external consultants (including his Solicitor) when he accessed the information. I understand that the Applicant did in fact make an appointment and that he did in fact re-inspect the documents (but not with his Solicitor).
Later on 17 December 2019, Mr Lacy sent to the applicant an email attaching a copy of the Tribunal's decision in Hoggett v Campbelltown City Council [2019] NSWCATAD 258. His covering email included: As promised, please find a link to the most recent (and clearly strikingly similar) tribunal decision which appears to have almost identical factual background. Again, whilst it is entirely a matter for you, I simply do not see that the tribunal will find that it has jurisdiction to override the copyright act. Whilst, as the tribunal member pointed out, you are entitled to argue that the previous tribunal decisions are wrong, I think you ought appreciate that this would involve you establishing that (not the council) but at least three other senior tribunal members fell into legal error. I simply don't see that happening. Again though a matter for you. I only appear in relation to the NCAT/GIPA and, if the tribunal does find that way, all well and good. Neither myself or Andrew are trying to prevent you getting hard copies for any other reason than our legal obligation to properly apply the legal principles and assist the tribunal in that regard. I just don't see it happening as the tribunal will generally follow good law unless it is clearly in legal error. I don't see one in any decision I have read and they are all reasonably similar. Anyway I'll leave it with you to absorb and consider.
The applicant responded on the same day in the following terms: Thank you so much for your information. As you can appreciate I need to take the (sic) up with my legal representative. But in the meantime perhaps you can help with the following information. If that the (sic) case could you please issue me with a full occupancy certificate forthwith.
Mr Lacy's evidence is that there was an ongoing dispute between the applicant and the Council and that: …one of the areas of contention between Council and the Applicant is that the Council (as a regulatory authority) had not yet issued a final occupation certificate for the building.
On 22 January 2020, the applicant received an email from his solicitor in the following terms: I have done some research and things don't look good for your application at this time. I attach a copy of a 2019 decision that contains many of the same issues that you have in your case. It seems that because you haven't as yet commenced proceedings, you don't fit within a category that allows you to have the documents copies and provided to you. It also says that the fact that you have requested response from the owners of the reports about your request for access and they haven't responded does not constitute implied consent. I do attach a copy of the Port Macquarie Council application for copies of development documents and the position of council shown on the last page under the heading "Copyright" is interesting, however, it may not hold any weight. You may want to plead ignorance and still raise your issues and see how it plays out (maybe just raising Pt Macquarie Council for) to show that WSCs position isn't adopted by all Councils and argue that given that in your case the Council is the certifier, Council is using this objection to hinder your ability to call them to account for their decisions which directly relate to the property in which you live which relate to safety issues. Happy to discuss further should you wish.
The "2019 decision" attached was the Tribunal's decision in Sandy.
On 28 January 2020, the second case conference was held. At that case conference the applicant sought and was granted an additional period of time in which to serve his submissions, so that he could obtain legal advice.
On 27 February 2020, the applicant filed his submissions. As noted in Brown v Wingecarribee Shire Council [2020] NSWCATAD 102 at [21], the applicant's submissions were focussed on issues other than whether copyright existed and would be infringed if copies of the reports were to be provided. The focus was on irrelevant issues, including the ongoing dispute between the applicant and the Council and a suggestion that the Council was seeking to hinder his access to the reports (despite the applicant having already been given viewing access which he had exercised).
Mr Lacy's costs of representing the Council in this proceeding are $2000 (8 hours at $250 per hour).

Council's submissions

The Council's submissions on costs may be summarised as follows: 1. s 60 (2) of the NCAT Act provides the Tribunal with a broad discretion to award costs where the Tribunal is satisfied that "special circumstances" exist; 2. in the present case, there are special circumstances because: 1. the applicant's application was untenable; and 2. of the manner in which the applicant conducted the proceedings, including his perseverance with his application despite his knowledge that it was untenable; 1. s 60(4) of the NCAT Act allows the Tribunal to make a fixed sum costs order and the Tribunal should do so.

Applicant's submissions

The applicant did not engage with the Council's submissions on costs. His submissions again focussed upon the ongoing dispute between the applicant and the council, including losses which the applicant claims the Council has caused him to suffer.

Absence of a tenable basis

Among the non exhaustive list of factors that the Tribunal may take into account in determining whether there are special circumstances warranting an award of costs are "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" (s 60(3) (c) of the NCAT Act).
In my view the applicant's claim that hard copies of the reports should have been released to him had no tenable basis. It was directly contrary to the text of s 72 (2) (c) of the Government Information (Public Access) Act 2009 and to the Tribunal's decisions in Amos, Sandy and Hoggett.

Applicant's conduct of the case

The Council relies upon a miscellany of conduct by the applicant as demonstrating special circumstances.
Of these, the most significant is the applicant's perseverance with the application in the face of his knowledge that the application had little chance of success. In this regard, I note that: 1. the internal review decision explained in some detail that the application was unlikely to succeed and referred to the Tribunal's decisions in Amos and Sandy; 2. at the case conference on 17 December 2019, Mr Lacy carefully explained to the applicant that the application was doomed to fail because the Tribunal had consistently affirmed decisions of councils to provide view only access to information protected by copyright. Mr Lacy took the applicant through the Tribunal decisions including Sandy and Hoggett. A further case conference was set so as to allow the applicant to decide whether to proceed with the application; 3. later that day, Mr Lacy sent a copy of Hoggett to the applicant, under cover of an email which reiterated his view that the application would fail in light of the previous Tribunal decisions; 4. on 22 January 2020, the applicant was informed by his solicitor that: I have done some research and things don't look good for your application at this time. I attach a copy of a 2019 decision that contains many of the same issues that you have in your case. It seems that because you haven't as yet commenced proceedings, you don't fit within a category that allows you to have the documents copies and provided to you. It also says that the fact that you have requested response from the owners of the reports about your request for access and they haven't responded does not constitute implied consent. I do attach a copy of the Port Macquarie Council application for copies of development documents and the position of council shown on the last page under the heading "Copyright" is interesting, however, it may not hold any weight. 1. despite the information provided by Mr Lacy and the advice of his solicitor, the applicant chose to pursue his application and to put the Council to the trouble and cost of defending it; 2. the applicant's submissions in the substantive hearing did not attempt to explain why the Tribunal should not follow its earlier decisions, and instead focussed on irrelevant matters.
In my view the combination of the untenable nature of the applicant's claim and his perseverance with it in the face of explanations made to him that it was untenable is sufficient to constitutes special circumstances. I am also satisfied that those circumstances are sufficient to warrant an award of costs in favour of the Council. As such, it is unnecessary for me to consider the other species of conduct relied upon by the Council.
As noted above, the Council seeks a fixed sum costs order. In 203 Castlereagh Street Pty Limited v Skybloo Holdings Pty Limited [2017] NSWCATAP 29 the Appeal Panel said at [39]-[41]: 39. The principles concerning when a Court might make a gross sum costs order are set out in a number of recent Court of Appeal decisions, including: Hamod v State of New South Wales [2011] NSWCA 375 at [813]ff; eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (No 2) [2015] NSWCA 422 at [8]ff and [30]; and Kostov v Zhang (No 2) [2016] NSWCA 279 at [19]ff. 40. These principles, relevantly adapted to the circumstances of the Tribunal, include: (1) A fixed sum costs order involves a departure from the usual process by which costs are assessed in accordance with the statutory procedures now relevantly found in the Legal Profession Uniform Law Application Act 2014 (NSW) (especially Pt 7 dealing with "ordered costs") and the Legal Profession Uniform Law (NSW), eInduct Systems at [8]; (2) A fixed sum costs order may be appropriate where: (a) the sum of costs in question is relatively modest, eInduct Systems at [30]; (b) a party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment, Hamod at [813], [816] and [817], eInduct Systems at [30]; (c) the assessment of costs would be protracted and expensive, Hamod at [813] and [817]; and/or (d) the case was complex, Hamod at [815]-[817]; (3) Sections 36(1) and (4) of the NCAT Act (which can be seen as equivalent to those in ss 56(1), 57(1)(d) and 60 of the CP Act) suggest that the following factors merit particular consideration: (a) the relative responsibility of the parties for the costs incurred; (b) the degree of any disproportion between the issue litigated and the costs claimed; (c) the complexity of the proceedings in relation to their cost; and (d) the capacity of the unsuccessful party to satisfy any costs liability, Hamod at [816], Kostov at [22]. (4) An order for fixed sum costs should be based on an informed assessment of the actual costs, having regard to the information before the Tribunal. Furthermore, the approach taken to estimate the costs must be logical, fair and reasonable. This may involve an impressionistic discount of the costs actually incurred in order to take into account the contingencies that would be relevant in any formal costs assessment, Hamod at [820]; (5) The power to make a fixed sum costs order should only be exercised when the Tribunal considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available, Hamod at [813], Kostov at [23]. Examples of the type of material that should be available if a fixed sum costs order is to be made can be found in the decisions in Colquhoun v District Court of New South Wales (No 2) [2015] NSWCA 54 at [7] and SAB Closed 1 Pty Ltd v Bees & Honey Pty Ltd; Bees & Honey Pty Ltd v SAB Closed 1 Pty Ltd [2015] NSWSC 1162 at [10]. The types of supporting material usually required include: (1) the timing and nature of costs incurred, including details of the work done, the hours worked, the hourly rates actually charged and, in the case of counsel's fees, similar details concerning the work done by counsel; (2) the rates at which counsel, other lawyers and other professional advocates, if relevant, charge; and (3) the amount likely to be recoverable on assessment in the event that that took place, which may be established by "objective arm's length evidence from a costs assessor" (to use the language of Stevenson J in SAB Closed 1 at [10].
I will make a fixed sum costs order. I do so because the costs claimed are modest, there is evidence of the work done and rate charged, and such an order will allow both parties to avoid the cost and inconvenience of an assessment process.
Mr Lacy's evidence is that the Council's costs are $2000. These costs seem fair and reasonable and likely to be recoverable on an assessment of costs, particularly in view of Mr Lacy's relatively modest hourly rate of $250 and his experience as a solicitor. I will nevertheless apply a discount to reflect the uncertainty of the assessment process and order that the applicant pay the Council's costs in the sum of $1750.

Orders

I make the following orders: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 a hearing on the issue of costs is dispensed with. 2. The applicant is to pay the respondent's costs in the sum of $1750.

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: 09 September 2020

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