GA v University of Sydney [1995] AATA 160 | Case summary

REASONS FOR DECISION 1 In its decision delivered 13 May 2010 (GA v The University of Sydney (GD) [2010] NSWADTAP 31) this Appeal Panel dismissed the appellant's appeal, and gave the following directions in relation to the respondent's foreshadowed application for costs: 1. Respondent to file and serve submissions within 21 days. 2. Appellant to file and serve submissions in reply within a further 14 days. 3. Decision to be made without holding a hearing, as permitted by s 76 of the Administrative Decisions Tribunal Act 1997. 4. Any objection to the matter being dealt with on the papers to be notified to the Registrar and the other party within 7 days of the date of these directions, being the date of publication of these reasons. The Appeal Panel will consider the objection. 2 The respondent filed its submissions on 1 June 2010. The appellant filed his submissions on 17 June 2010. There has been no objection to the matter being determined on the papers. The Rule 3 The appellant's initiating application belongs to the review jurisdiction of the Tribunal. The award of costs is governed by s 88(1), (2) and (4) of the Administrative Decisions Tribunal Act 1997 (ADT Act). The ordinary rule is that each party bears their own costs. It is subject to an exception. 88 Costs (1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section. (1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal, or (vi) vexatiously conducting 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) any other matter that the Tribunal considers relevant. (2) The Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. … (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Tribunal, and (b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application. Submissions in support of an Award of Costs 4 The respondent's primary submission is that it is fair to award costs having regard to the absence of any tenable basis for the appeal in fact or law, and the manner in which the appellant conducted the appeal. 5 The submission refers to the following passages in the reasons of the General Division at first instance and those of the Appeal Panel. 6 (a) General Division 49 It is equally apparent that in the present proceedings GA seeks to agitate, under cover of applications to amend under the PPIP Act and FOI Act, all these issues so that the University's records accord with his assertions as the facts of his enrolment in the GMP. … 50 I have no hesitation in finding that in seeking to use the FOI Act to achieve these objects GA is mounting a collateral attack on the University, aimed at achieving remedies which should properly be pursued in other forums. 7 (b) Appeal Panel 25 GA's essential case is that he should have been treated differently, and, insofar as he was not, the University's conduct was invalid and unlawful. We agree with observations of the Member below, drawing in turn on the following remarks of Handley JA in Crewdson v Central Sydney AHS [2002] NSWCA 345 at [24]: 24 The appellant's attempt to use the Act as a vehicle for the collateral review of the merits or validity of official action should be rejected in any event. The Act is concerned with the accuracy of official records, not with the merits or legality of the official action recorded in them. Compare Re Resch and Dept of Veterans' Affairs (1986) 9 ALD 380, 386, 387 (Hall DP) and Hewitt v Grabicki 794 F. 2d 1373 (9th Circuit 1986), 1378. 26 In our view, GA's use of the amendment facilities of the two Acts border on the absurd. He had the opportunity back in February 2001 to ventilate this issue, and again in the context of the Supreme Court proceedings of 2004. 8 The respondent submits in conclusion on this point that it has consistently pressed the view that the appellant's review application was designed to achieve readmission to the graduate medical program. It contends that notwithstanding the detailed examination by the General Division of the Tribunal of the issues raised, and the substantial reasons given by it, the appellant put the respondent to further trouble, time and expense by filing an appeal that had no chance of success. 9 In relation to the manner in which the appellant conducted the appeal, the respondent refers to the following matters: (i) the length of the appellant's submissions - 64 pages plus 87 pages of attachments (ii) the difficulty in dealing with the content of the submissions because of the lack of clarity as to alleged errors of law and the way in which authorities and the like were dealt with (iii) the educational level of the appellant, and the nature of his qualifications - he has indicated he holds a Bachelor of Laws degree (iv) the length of time the appellant has pursued this dispute with the respondent, since 2004 and the fact of proceedings also in the Supreme Court. 10 The respondent submits that the proceedings were vexatious. We agree with the respondent's statement that proceedings may be vexatious if they are instituted with the intention of annoying, harassing or embarrassing a defendant, if they are brought for a collateral purpose, are devoid of any practical effect, or are manifestly untenable; and agree as to authorities cited (Attorney-General (Victoria) v Wentworth (1988) 14 NSWLR 481 at 491; Re Williams and Australian Electoral Commission [1995] AATA 160; (1995) 21 AAR 467 at [30] and [31]; Margan v University of Technology, Sydney [2003] NSWADTAP 65 at [9]-[11]; Wilde v University of Sydney [2004] NSWADTAP 32 at [10]; Miriani v Commissioner for Fair Trading [2005] NSWADT 99 at [28]). Submissions in Reply 11 The appellant disputes the respondent's claim that his submissions were difficult or confusing. He questions why the respondent devoted the amount of time indicated by it (more than 20 professional hours, see further below) to the case if it was one that was so untenable in fact and law. In his view, his submissions showed a diligent response to the direction to file and serve submissions in support of the grounds of appeal. He claims that the respondent breached an undertaking not to introduce new evidence in its reply at first instance. 12 As to his unrepresented status and his level of education, the appellant states that there is a 'vast difference' between holding a law degree and having the qualifications to be admitted to practice. He says - 'The respondent can not stretch the applicant's education to a place the law does not recognise.' 13 He notes that he sought to have the matters heard together (the Freedom of Information Act application and the Privacy and Personal Information Protection Act application) to reduce costs. The Tribunal and the Appeal Panel did hear the matters together. 14 At paras [39] to [76], and at [90]-[91] of his submissions, the appellant makes various submissions as to the wrongness of the respondent's conduct in how it dealt with him in respect of entry to the graduate medical program; and argues that this conduct is such that there should be no order for costs. 15 At paras [77] to [89] he puts a case as to why it was appropriate for him to seek to employ the personal records amendment machinery of the Acts mentioned to rectify the errors, as he sees them, made by the University. Consideration 16 In our view, the respondent's submissions are strong ones in the circumstances of this case. 17 It is very unusual for awards of costs to be made in the review jurisdiction of the Tribunal, especially at first instance. Moreover, applications by respondents for their costs of unsuccessful appeals have only been made very occasionally by Appeal Panels in review jurisdiction matters. 18 The Tribunal, both at first instance and when dealing with appeals, has recognised that the review jurisdiction provides a means for people to have reconsidered by an independent tribunal external to the administrative agencies of government the correctness and fairness of a decision: Hawke v Chief Executive Officer, WorkCover NSW (No. 2) (GD) [2008] NSWADTAP 45 at [13]-[14]; and Hutchings Electrical v Director General, Department of Fair Trading (No. 2) [2002] NSWADT 355 at [18]. The objectives of the ADT Act, s 3, include ones designed to promote the achievement of justice in individual cases and wider systemic objectives such as: (f) to foster an atmosphere in which administrative review is viewed positively as a means of enhancing the delivery of services and programs, (g) to promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales. 19 In line with these considerations, the Tribunal in dealing with review applications at the Divisional level rarely is called on to deal with costs applications from respondent agencies. The Tribunal has tended only to grant such an application where the review applicant has engaged in conduct that has exacerbated or prolonged unnecessarily the disposal of the matter: Potier v Department of Corrective Services [2009] NSWADT 291 at [21]; Nastav v Commissioner of Police, NSW Police [2007] NSWADT 291 at [17]. But Appeal Panels have recognised that a less generous outlook should be applied to appeals involving weak or hopeless cases: GA v Department of Education and Training and New South Wales Police (GD) [2005] NSWADTAP 64 at [41]; McGuirk v Vice-Chancellor, University of New South Wales (No 3) [2009] NSWADTAP 47 at [25]-[26]. A successful party at first instance (whether citizen or agency) should not be put to the inconvenience and expense of meeting a weak or hopeless case a second time around. 20 In our view, it is relevant to take some note of the apparent level of education or sophistication of an unsuccessful appellant. In this instance the appellant is a person who, for a period, was studying medicine in a graduate program and informed the Appeal Panel that he is now a graduate in law. Moreover, he made, in our view, prolix submissions, a course repeated in his reply to the costs application. We agree with the respondent's assessment of his main appeal submissions as confusing and difficult to align with the original grounds of appeal. We have set out our observations above, agreeing with the first instance Tribunal, on the collateral object of the proceedings in the Tribunal. 21 In our view, in the particular circumstances of this case it is fair to make an award of costs to the respondent. The Amount of the Costs Order 22 The respondent gave as its costs the sum of $10,014 (GST exclusive), and has applied for an award of approximately 48% of that amount, $4782, which it has divided into: reading and analysing the appellant's submissions, 5.1 hrs; drafting submissions in reply and supporting affidavit, 12.1 hrs; and attending appeal hearing, 3 hrs; with the index rate in the range of $200 to $260 per hour. 23 It noted that a large number of other items of cost are not included in the claim, such as drafting the notice in reply, various telephone and email attendances; settling submissions in reply; preparing lists of authorities and the like. A full statement of its costs appears at Annexure A to its submissions. 24 In our view, this is a modest and reasonable claim. We have rounded it down to $4,700 for the purposes of our order. 25 Where a costs order is made in the Tribunal it is often cast as one where the amount is to be 'as agreed' or 'as assessed' under the costs assessment procedures of the Legal Profession Act 2004. In our view, the making of an order of that kind in this case would simply open up another point for the continuation by the appellant of his dispute. In this instance a concrete order as to the amount of costs is the better option. Order That the appellant pay the respondent's costs of the appeal fixed at $4700.

GA v University of Sydney

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