The Applicant submits that there are no special circumstances which warrant an order for costs and that each party to the proceedings should pay its own costs. He submits that:
1. The starting point when considering costs is set out in section 60(1) of the NCAT Act, namely that each party should bear their own costs. It is not a jurisdiction in which costs go with the event and in which success, or partial success, in proceedings should give rise to an expectation of costs.
2. The Tribunal may only award costs in the proceedings if satisfied that there are: "special circumstances warranting an award of costs" within the meaning of section 60(2) of the NCAT Act.
3. The onus of proof to establish that special circumstances exist is on the Respondent.
4. Special circumstances are circumstances that are out of the ordinary.
He relies on a number of decisions in support of his submission. Special circumstances that warrant departure from that the usual order under section 60(1) of the NCAT Act exist where:
1. there has been circumstances as described in subsections 60(3)(a) - (g) of the NCAT Act: AIN v Medical Council of New South Wales [2015] NSWCATAP 241 at paragraph [146]
2. there has been some degree of recalcitrance: AIN v Medical Council of New South Wales [2015] NSWCATAP 241 at paragraph [167];
3. proceedings were conducted in a way that unreasonably disadvantaged the other party Ung v Golden Century Property Investments Pty Ltd [2018] NSWCATCD 56 at paragraph [12]; or
4. where the parties case is 'so manifestly weak; or misconceived; or without any tenable basis In law; or frivolous or vexatious': Abdel-Messih v Wang (No 2) [2018] NSWCATAP 209 at paragraph [26]
The Applicant contends that the Respondent's characterisation of his applications is misleading. He provided the following background information:
a. The Applicant's client is a major sponsor in the harness racing industry and against drugs in harness racing.
b. The Applicant wanted to ensure that all horses were swabbed, that those swabs were taken to the laboratory and that these swabs were tested and showed a negative result to any illegal substances.
c. The Applicant wanted to ensure that no one had changed or tampered with the swabs between them being obtained at the raceway to the lab due to the history in the harness racing industry.
d. The Applicant wanted to ensure the integrity of the industry.
e. The Applicant also wanted to ensure that everyone in the industry is at a level playing field and given a fair go.
The Applicant explained that his application to the Tribunal sought review of the Respondent's decision to refuse to provide access to the following information:
GIPA Application 1
a. A copy of all documents in hard copy and in digital form (to be produced to us by way of hard copy) and/or all additional information relating to the drug testing of the horse Aztec Bromac NZ that relates to the horses participation in the race on 30 June 2020 at Menangle.
c. Details as to security and transport of the sample through the process, names, employer and contact details of each individual who had custody of any related sample at all times and the timeframe of the custody of each person having such custody in chronological order and names, and contact details of persons who were responsible for the transport of such samples.
GIPA Application 2
f. Copies of all testing results of any laboratory in relation to the above samples.
GIPA Application 3
i. Copies of all testing results of any laboratory in relation to the above samples.
GIPA Application 4
I. Copies of all testing results of any laboratory in relation to the above samples.
The Applicant contends that the Respondent's description of the First Offer is not correct. He submitted that the First Offer would be more adequately described as the Respondent providing redacted laboratory test reports for all race meetings.
The Applicant partially accepted the offer but advised the Respondent that in order for it to consider whether any other documents were to be pressed, the Applicant requested a list of documents relating to all testing results of any laboratory. In requesting a list of documents prior to mediation, the Applicant was narrowing the issues in hopes to be able to settle the matter at mediation.
The mediation proceeded on 11 December 2020. At that time the Respondent was represented by Mallam Lawyers. The discussions at the mediation went beyond the scope of the GIPA Applications in an attempt to settle the matter. The mediation was adjourned for the Respondent to provide redacted documents for the Applicant to consider. Following the mediation, the only outstanding issues were:
1. Chain of custody documents; and
2. Records relating to the testing of horses at the 4th race meet whose swabs were not sent to the laboratory.
On 14 December 2020, the Applicant was notified that the Respondent had engaged Ms Claudette Chau of Cockburn & Co. The Respondent withdrew its position and offers on 17 December 2020.
The Applicant notes that Ms Chau was not at the mediation and did not sign the mediation agreement which was required by the Tribunal. However, the Applicant notes that, in accordance with the Mediation Agreement signed by all parties:
1. Mr Chua's Affidavit and the Respondent's submissions breach the confidentiality requirements of the Mediation Agreement.
2. In accordance with clause (c) of the Mediation Agreement, anything said or any document relating to the mediation whether it was prepared before, during or after the mediation is not admissible in any proceedings before any Court.
The Applicant submits that the Respondent filed its Outline of Submissions in February 2021 and indicated its reliance on a number of public interest considerations against disclosure. That was the first time that the Applicant was made aware of the Respondent's reliance on several of the public considerations against disclosure.
At the Hearing the Respondent relied upon clauses 1(f), 1(h) and 2(b) of the table to section 14 of the GIPA Act as arguments for an overriding public interest against disclosure of the withheld information. The Respondent did not use clauses 1(f) and 1(h) as an initial reason for refusing the GIPA Applications. The Applicant was not aware of the Respondent's reliance on clause 1(h) until 3 March 2021. That is, one week before the hearing.
The Respondent also relied on a number of confidential statements to which the Applicant was not given access.
The Applicant says that he settled GIPA Application 1 in an attempt to not waste the Tribunal's time at the Hearing. He says that the offers provided by the Respondent between the hearing and the closing submissions were rejected on the basis that he would not give up the legal right to make future GIPA Applications.
The Applicant notes that the Tribunal did not make any orders to restrict or limit the Applicant's rights to make future GIPA Applications. . He says that, therefore, the Respondent is incorrect in asserting that the Applicant did not achieve a more favourable result than those offered by the Respondent.
[2]
Discussion
The Tribunal may exercise its discretion to make an order for costs under section 60(2) when it is persuaded that special circumstances exist warranting an order for costs.
A costs order is compensatory, not punitive. The costs power should not be used as a sanction to punish applicants for improper conduct or as a deterrent. However where one party forces its opponent to incur costs that would otherwise not have been necessary or reasonable, it may well be appropriate, regardless of any other circumstances, to award costs against the indulged party: AX & AY v Wesley Dalmar and ors [2008] NSWADT 231.
The Respondent has raised a number of grounds in support of this application. It has pointed to the grounds set out in subsections 60(3)(b), (d), (f) and (g) of the NCAT Act. That is:
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
…
(d) the nature and complexity of the proceedings,
…
(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.
[3]
Prolonging unreasonably the time taken to complete the proceedings
I accept the Applicant's argument that the Respondent relied on public interest considerations against disclosure that it had not included in its initial reason for refusing the GIPA Applications. I also accept that the Applicant was not made aware of the totality of the Respondent's case until shortly before the hearing. In the circumstances, given that the onus of justifying its decision lies with the agency, the Applicant was entitled to require the Respondent to establish that there were public interest considerations against disclosure that outweighed the presumption in favour of release.
I agree with the Applicant that any reference to what took place at the mediation and anything relating to the mediation is not admissible in these proceedings. I do not propose to discuss those issues any further.
I note however that where the settlement of a GIPA application involves provision of redacted documents, it is difficult to understand the basis on which an agency would continue to withhold that information. If the agency is able to redact documents in a way that addresses its concerns in relation to the public interest considerations against disclosure, it is reasonable to expect that the presumption in favour of release would outweigh considerations against disclosure.
In relation to GIPA Applications 2, 3, and 4 it is common ground that the Respondent proposed that the parties enter a Deed of Release which limited analogous GIPA applications in the future. As the Applicant has noted, the Tribunal did not make any orders to restrict or limit the Applicant's rights to make future GIPA applications. In that regard, the Applicant achieved a more favourable result than that proposed by the Respondent.
In the circumstances I do not consider that the Applicant was unreasonable in refusing to agree to that condition. If the Respondent was of the view that the Applicant should be restrained from making future GIPA applications, an application could have been brought under section 110 of the GIPA Act. It could have sought an order that the Applicant is not permitted to make an access application without first obtaining the approval of the Tribunal.
In the circumstances I do not accept that the Applicant has been responsible for prolonging unreasonably the time taken to complete the proceedings. I do not agree that this issue constitutes a special circumstance.
[4]
The nature and complexity of the proceedings,
I accept that the subject matter of the access applications involved a degree of complexity. However, the complexity of the subject matter is a separate issue to the complexity of the considerations for determination. In the circumstances of this matter I do not agree that the complexity constitutes a special circumstance. If it did, I do not consider that it is a special circumstance warranting an order for costs in this case.
[5]
Refused or failed to comply with the duty imposed by section 36(3)
The Respondent contends that the Applicant refused to settle the matter unless the Respondent agreed to produce documents that were outside the scope of the GIPA Applications. This issue appears to me to relate to the mediation and I do not propose to address it.
Nevertheless, as I have noted above, I do not consider that the Applicant was responsible for prolonging unreasonably the time taken to complete the proceedings. In essence this is the basis for the contention that the Applicant failed to observe his obligation as a party to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The Respondent contends that this conduct ought to give rise to an award of costs. I do not agree.
In the circumstances that I have referred to above, I am not satisfied that refusing to settle the matter demonstrated a failure on the Applicant's part to observe his obligation as a party to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
[6]
Any other matter that the Tribunal considers relevant.
I am not satisfied that there are any other issues that warrant the exercise of the discretion to make an award of costs in this matter.
[7]
Conclusion
In this matter I am not persuaded that special circumstances existed. If special circumstances did exist, this is not a matter in which I consider that the special circumstances warrant an order for costs. This is not a matter in which I would exercise the discretion to make an order for costs.
In my view there should be no departure from the usual order under section 60(1) of the NCAT Act. The correct outcome in this case is that there should be no order for costs.
While I can understand that the Respondent would have preferred that the matter had resolved earlier in the proceedings, I am not satisfied that the Respondent was disadvantaged or suffered any prejudice by any conduct on the part of the Applicant in this matter. I am not satisfied there are any special circumstances which would warrant an order for costs in the Respondent's favour. The primary rule that each party to proceedings is to pay the party's own costs, should apply.
[8]
Order
The Respondent's application for costs is dismissed.
[9]
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: 20 May 2022
Parties
Applicant/Plaintiff:
Cleverley
Respondent/Defendant:
Harness Racing New South Wales
Legislation Cited (1)
Administrative Decisions Tribunal Act 1997(NSW)
Cases Cited (5)
Introduction
This is an application by Harness Racing New South Wales ("HRNSW" or "the Respondent") for an order that David Cleverley ("the Applicant") pay its costs of the proceedings pursuant to section 60 of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act").
The substantive proceedings concerned an application for review of determinations by HRNSW under the Government Information (Public Access) Act 2009 ("the GIPA Act"). The determinations related to a number of access applications by the Applicant for information held by the agency.
The Applicant lodged four access applications in which he sought access to information held by HRNSW. HRNSW determined to refuse the applications.
The Applicant's access applications are:
1. GIPA Application dated 9 July 2020 ("GIPA Application 1");
2. GIPA Application dated 17 August 2020 ("GIPA Application 2");
3. GIPA Application dated 25 August 2020 ("GIPA Application 3"); and
4. GIPA Application dated 26 August 2020 ("GIPA Application 4").
I affirmed the decision that was under review to the extent that it had not been settled between the parties: Cleverley v Harness Racing New South Wales [2021] NSWCATAD 281.
HRNSW now seeks its costs of those proceedings.
Applicable legislation
Section 60 of the NCAT Act applies in respect of the costs application. Section 60 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.
Section 36 of the NCAT Act provides:
36 Guiding principle to be applied to practice and procedure
(1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
(2) The Tribunal must seek to give effect to the guiding principle when it -
(a) exercises any power given to it by this Act or the procedural rules, or
(b) interprets any provision of this Act or the procedural rules.
(3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal -
(a) a party to proceedings in the Tribunal,
(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.
(4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.
(5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.
As can be seen from the terms of subsection 60(1) of the NCAT Act, the starting point in an application for costs is that each party pay its own costs. Subsection 60(2) gives the Tribunal discretion to award costs if it is satisfied that there are "special circumstances warranting the award of costs." That is, even if the Tribunal is satisfied there are special circumstances, the Tribunal must also be satisfied that such circumstances warrant an award of costs.
Subsection 60(3) specifies the matters to which the Tribunal may have regard when considering whether or not special circumstances exist.
The expression "special circumstances" was considered by the Court of Appeal in the context of section 88(1) of the Administrative Decisions Tribunal Act 1997 (NSW). Section 88 was comparable to section 60 of the NCAT Act. In Cripps and Another v G & M Dawson Pty Ltd and Another; G & M Dawson Pty Ltd and Another v Cripps and Another [2006] NSWCA 81 Santow JA, with whom Mason P and Brownie AJA agreed, said at paragraph [60]:
On the one hand, the Tribunal correctly concluded that the respondent, through no fault of its own, has been placed in the situation where it has been forced to pursue this litigation. Yet it still failed to find special circumstances. With respect, I consider that the Tribunal was in error in failing to conclude that special circumstances here applied. For this purpose, it suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional. While a finding of "serious unfairness" is not prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration.