The Applicant makes application for its costs of the proceedings.
The Respondent makes application for its costs in resisting the Applicant's costs application.
For the reasons that follow, I dismiss each parties' cost application. I make no order as to costs.
[2]
Background
The Applicant is the Director of Grande Drill & Blast Pty Ltd (Grande Drill & Blast) which conducts a drilling and blasting business.
The Respondent owns and operates Northern Rivers Quarry (the Quarry).
Donnelly Blasting Pty Ltd, who was found to have a right to be heard in these proceedings, is a company which also conducts a drilling and blasting business at the Quarry under contract with the Respondent. As described in the First Decision (as defined below), Donnelly is a "business and commercial competitor of the applicant's company".
The substantive matter was an application by the Applicant under s 55 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and s 100 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for an administrative review of a decision of a delegate of the Respondent in response to an access application the Applicant made.
The background and procedural history related to this matter which preceded Senior Member's French orders of 9 February 2024 is set out in paragraphs [1] to [35] of Grande v Lismore City Council [2024] NSWCATAD 33 (the First Decision).
The evidence and submission relied upon by the Applicant, Respondent and Donnelly Blasting Pty Ltd is listed at [11] of the First Decision which incorporated both open and confidential submissions and evidence. In addition, Mr Jason Donnelly, Director gave oral evidence in Donnelly Blasting Pty Ltd's cause as well as Donnelly Blasting Pty Ltd relying on documentary evidence.
As listed in Annexure A to the First Decision, Senior Member French categorised the documents responding to the Applicant's access application into 16 categories. Senior Member French set aside the decision of the Respondent to refuse access to categories 1 to 13 (subject to the redaction of certain personal information of the personnel of Donnelly Blasting Pty Ltd) and, inter alia, remitted to the Respondent categories 14 to 16 for reconsideration.
Categories 14 to 16 related to the following documents as recorded in Annexure A to the First Decision:
1. Category 14: Ron Southon Pty Ltd Blast Report - 23 December 2022.
2. Category 15: Blakebrook Quarry Blast Control Plans
3. Category 16: Donnelly Blasting blast design documents: drill plans; load plans; design and evaluation records; drill summaries; monitor logs, monitoring results, surveys, weight envelope charts, clearance distance designs, monitor site locations, explosive transport catrnotes.
With respect to categories 14, 15 and 16, Senior Member French made, inter alia, the following findings at [88], [89] and [98]:
88. Category 14 is a "Blast Report" submitted to the agency by Ron Southon Pty Ltd in relation to the blast it conducted at the quarry on 23 December 2022. For the reasons stated above I am unable to ascertain why this document is in the confidential bundle, other than that the clause 4(d) consideration public interest against disclosure is asserted in relation to the whole of that bundle. The document includes information such as number of holes, their spacing, depth, diameter, and information related to the characteristics of explosive charges. I am prepared to allow that such information could be of commercial sensitivity because it reflects Ron Southon Pty Ltd's blast design which may be unique to it. It thus may constitute intellectual property the disclosure of which may be prejudicial to Ron Southon Pty Ltd's commercial and financial interests. However, in the absence of any satisfactory explanation as to how precisely that is the case, I am not prepared to make those findings. I give the possibility that this is the case some weight as a potential clause 4(d) public interest against disclosure of this information.
89. Categories 15 and 16 are documents that contain information about the design of blasts carried out by Donnelly. In broad overview they contain information about shot locations and size, blast parameters, blast design maps, drill plan maps, tie in plans, and bore track reports. I am prepared to allow that such information could be of commercial sensitivity because it reflects Donnelly Pty blast design which may be unique to it. It thus may constitute intellectual property the disclosure of which may be prejudicial to Donnelly's commercial and financial interests. However, in the absence of any satisfactory explanation as to how precisely that is the case, I am not prepared to make those findings. I give the possibility that this is the case some weight as a potential clause 4(d) public interest against disclosure of this information.
…
98. For the reasons set out above, I am satisfied that the information in Categories 14, 15 and 16 potentially engage the clause 4(d) public interest against disclosure. However, on the material before me I cannot be satisfied that this consideration is made out as a matter of fact, and if it is, I am unable to determine on the material before me what weight that consideration should be given.
[Emphasis added]
On 7 March 2024, the Applicant emailed written submissions to the Tribunal seeking costs (First Cost Submissions). The Respondent filed a response on 3 April 2024.
On 8 March 2024, the Respondent reconsidered its decision (Reconsidered Decision). As a result of that reconsideration the documents the subject of categories 14 and 15 were released subject to the redaction of personal information belonging to staff, but access was refused to category 16. According to the Reconsidered Decision, the refusal to release the information contained in category 16 was based on two reasons being, in summary:
1. releasing the explosive transport cartnotes would breach Donnelly Blasting Pty Ltd's security plan for transport and storage of explosives which is a public safety concern; and
2. releasing the remainder of the category 16 documents would release intellectual property belonging to Donnelly Blasting Pty Ltd which has commercial value to Donnelly Blasting Pty Ltd and would risk their ability to continue to be competitive.
On 14 March 2024, the Applicant applied to the Tribunal for administrative review of the Reconsidered Decision.
At the case conference on 25 March 2024, the Applicant confirmed that the only matter that remained for determination by the Tribunal following the Reconsidered Decision concerned the "Category 16" documents. A timetable was set by the Tribunal providing for the exchange of evidence and submissions with the Respondent having until 15 April 2024 and the Applicant having until 29 April 2024. The matter was set down for hearing to be heard on 13 June 2024.
On 11 April 2024, the Respondent sent a copy of the documents to the Tribunal on a confidential basis by Express Post. The Respondent otherwise did not serve any further evidence.
Either on Thursday 6 June 2024 (according to the Applicant) or Friday 7 June 2024 (according to the Respondent), the Applicant served additional evidence in the form of an affidavit affirmed by the Applicant and an expert report. By at least this time, Donnelly Blasting Services Pty Ltd had advised Council that it would not participate further in the matter.
According to the filing stamp on the documents held on the Tribunal's file, the new evidence of the Applicant was not filed with the Tribunal until 12 June 2024 being a day before the matter was set down for hearing.
With respect to the expert report, the report was by Mr Michael Humphreys who, according to the report, is a mining engineer with experience as a drill and blast engineer and as a blasting specialist in mining. Significantly, Mr Humphreys opined in respect of three questions one of which related to the commercial value and commercial sensitivity of the information in category 16. In considering this question, Mr Humphreys opined as follows:
1. Mr Humphreys accepted the concern regarding security sensitive information relating to the transportation and storage of explosives.
2. Mr Humphreys also accepted that information related to dollar costs would also be commercially sensitive.
3. In both cases, Mr Humphreys was of the view that the concern could be addressed by redaction.
Otherwise, Mr Humphreys described the characterisation of the other information as "commercially sensitive" as "unrealistic" because such information typically fell within industry guidelines or was related to software tools which were not specific to a particular commercial party but were used across the mining industry. Accordingly, Mr Humphreys view was that the other information in category 16 would require specific justification.
With respect to the affidavit affirmed by the Applicant, amongst other information, the Applicant gave evidence that on or around 10 April 2024, he conducted a google search of the Respondent's website and discovered that certain documents falling within category 16 were already publicly available and accessible by him. Consistent with the opinions of Mr Humphreys, the Applicant made the following concession at paragraph [48] of his Affidavit:
To the extent that the information sought contains private employee details, explosive licences, security clearances, and storage locations, I have no interest in this information and do not press for disclosure of that information. That information need not be disclosed.
On 12 June 2024, being two or three business days after receiving the expert report and Affidavit, the Respondent proposed consent orders. The consent orders incorporated the concessions made by the Applicant by virtue of his Affidavit and consistent with the expert report of Mr Humphreys in that "security sensitive information" was to be redacted. The form of consent orders provided by the parties was as follows:
1. The Respondent's second decision to refuse to provide access to government information that falls within the scope of the applicant's access request is set aside.
2. In substitution for that decision, and without affecting the orders made on 9 February 2024, the Tribunal determines that the applicant is to be provided with access, by 4 July 2024, to the information in category 16 at Annexure A to the Tribunal's reasons for decision given on 9 February 2024, subject to the redaction of any of the following information appearing in those
a) any natural person's name, signature, personal address, telephone number, driver's license details and vehicle registration number, and details of explosives licenses and security clearances; and
b) security sensitive information contained in explosives transport cartnotes (such as names, locations and schedules) - with the intent that the delivered quantities of bulk explosive and initiating products (and any other information that is not security sensitive) are not to be redacted. [Emphasis added]
On 13 June 2024, the matter was set down for hearing and the form of consent orders were provided to Senior Member French. The orders were made along with a timetable to deal with the Applicant's foreshadowed application for costs.
On 27 June 2024, the Applicant emailed further submissions seeking costs in large part repeating the First Cost Submissions (Second Cost Submissions). The Respondent filed submission responding and a written reply was also subsequently filed by the Applicant.
On 25 November 2024, Senior Member French resigned from the Tribunal.
On 12 December 2024, Justice Armstrong, President of the Tribunal having afforded the parties an opportunity to make submissions, replaced Senior Member French pursuant to s 52 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act).
In the orders that were made on 13 June 2024, the Tribunal notified the parties that it proposed to dispense with a hearing of any application for costs. Section 50(2) of the CAT Act, provides that:
The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.
The parties have agreed that the issue of costs may be determined on the papers. As I am satisfied that the issue of costs can be adequately determined in the absence of the parties by considering their written submissions, I dispense with a hearing.
[3]
Legislation
Section 60 of the CAT Act relevantly provides:
(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.
The onus to satisfy the Tribunal that there are special circumstances warranting an award of costs lies with the party making the application: Styles v Wollondilly Shire Council [2017] NSWCATAP 108.
The special circumstances specified in s 60(2) of the CAT Act are circumstances that are out of the ordinary and do not have to be extraordinary or exceptional: see Youssef v NSW Legal Services Commissioner (Costs) [2020] NSWCATOD 115 (Youssef) at [108].
Merely because one or more s 60(3) criteria are satisfied does not necessarily mean special circumstances exist: The Owners - Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273 at [11]-[13].
However, it does not follow that a costs order should be made simply because one or more of the factors in s 60(3) are made out. Even if satisfied that there are special circumstances, there must be circumstances "warranting an award of costs" - Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103 at [21]; Youssef at [108].
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 87 at [9]; Obieta v Australian College of Professionals Pty Ltd (2014) NSWCATAP 38 at [81]; Khalafv Commissioner of Police [2019] NSWCATOD 178 at [29]; Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137 at [35].
In Youssef the Appeal Panel stated (at [107]):
The general rule that parties should bear their own costs is designed to promote access to justice generally and to minimise the overall level of costs in tribunal proceedings as far as is practicable: Choi v University of Technology Sydney [2020] NSWCATAP 18 at [41]. It is accepted that where a party is unsuccessful in the party's application before the Tribunal, this alone will not amount to special circumstances in favour of the successful party.
[4]
Submissions
The Applicant submitted that he had been "wholly successful in his claim" and "therefore seeks his costs" because "a party who succeeds on a final basis is ordinarily entitled to his costs".
Despite basing the claim for costs primarily on the Applicant's asserted success, the Applicant also submitted that "special circumstances" existed in respect of this matter consistent with a consideration of:
1. 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 pursuant to s 60(3)(c) of the CAT Act;
2. the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance pursuant to s 60(3)(e) of the CAT Act;
3. the Respondent's alleged refusal or failure to comply with the duty imposed by s 36(3) pursuant to s 60(3)(f) of the CAT Act; and
4. other matters that the Tribunal should consider relevant pursuant to s 60(3)(g) of the CAT Act.
In support of these contentions, the Applicant submitted that:
1. The Respondent failed to identify the "factual substratum" for its claim to refuse disclosure based on clause 4(d) of the Table to section 14 of the GIPA Act. Paragraphs [64] and [91] of the First Decision is cited in support.
2. The Respondent then did not adduce any evidence of any weight to support that reliance with the Respondent allegedly doing "nothing to support its case with any evidence, yet resist the claim throughout, and then capitulate on the eve of the hearing" and otherwise, making the information publicly available on its website.
3. The Respondent allegedly "failed to undertake the statutory task mandated for it by the GIPA Act" with its approach being "suggestive that the agency has merely acted as a mouthpiece for Donnelly in refusing access to information involving it, without engaging in the process of independent analysis required of it by the policy of the Act" as stated by Senior Member French at [101] of the First Decision. This, it is said "bespeaks a fundamental misunderstanding of the respondent's role under a statute. It justifies a costs order".
4. The Respondent allegedly failed to comply with the principles applicable to a model litigant in that it has, according to the Applicant, caused unnecessary delay, failed to endeavour avoiding litigation; and relied on a legal principle for which it had no evidentiary foundation.
5. The Respondent, as contended by the Applicant, "allowed the applicant to believe that it would resist the making of orders until the day before the final hearing on 13 June 2024. The respondent should have taken steps much earlier to say that it would capitulate, to avoid the applicant incurring the costs of preparing lay and expert evidence, which it served on 6 June 2024."
6. The Respondent ultimately released, voluntarily, everything the applicant had sought from the beginning.
In response, the Respondent submitted that:
1. The Applicant's first cost application, which was made following the First Decision, was premature because the proceedings were yet to be finalised.
2. The Applicant applies the wrong test because the Applicant's presumption that a successful party will ordinarily be entitled to costs is misplaced in this jurisdiction.
3. With respect to the alleged "special circumstances" relied upon by the Applicant with reference to s 60(3)(c), (e), (f) and (g), the Respondent submitted:
1. section 60(3)(e) is not engaged because the proceedings were not taken by the Respondent but rather, the Applicant.
2. section 60(3)(f) has no application as the Respondent co-operated with the Tribunal to give effect to the guiding principle and complied with directions and orders.
3. with respect to sections 60(3)(c) and (g):
1. the finding at paragraph [91] of the First Decision does not support the Applicant's contention either in isolation or in context. In any case, insufficiency of material does not of itself or together with the other alleged "matters" warrant an award of costs.
2. the assertion that Respondent did nothing to support its case is misplaced and unsupported by the evidence and submissions filed and relied upon by the Respondent.
3. it was the late evidence of the Applicant and his expert that led to reconsideration of Respondent's position and the agreement reached as to proposed consent orders. The expert evidence assisted in determining what kinds of information would be security sensitive. In this context, the position ultimately taken by Council was reasonable and does not warrant an award of costs.
4. there is no basis to assert that the Respondent did not act as a model litigant.
[5]
Consideration
The Applicant's presumption that a successful party will ordinarily be entitled to costs is misplaced in consideration of s 60 of the CAT Act. The requirement of "special circumstances" requires something more than success because there is nothing "special" about one party succeeding as against the other in any proceedings. In any case, and as set out above when considering the applicable legal principles, even if special circumstances are established, that is insufficient in this jurisdiction because once special circumstances are established, those circumstances themselves need to be of a kind that warrant an award of costs.
"Special circumstances" do not exist in this case for the purposes of s 60 of the CAT Act and so the first threshold is not reached. In this respect, and after considering the documents that were filed in the proceedings, I do not accept, as submitted by the Applicant, that the position of the Respondent had no tenable basis in fact or law. The Applicant's contention in this respect is not supported by the reasoning and outcome of the First Decision nor the evidence of the Applicant's expert. With respect to the former, there would have been no basis to remit the matter for further consideration if the position of the Respondent was hopeless - rather, access would have been granted at that juncture. With respect to the latter, the expert retained by the Applicant accepted and conceded that some of the information was confidential and there was an importance in maintaining this confidentiality, namely:
1. releasing the explosive transport cartnotes would breach Donnelly Blasting Pty Ltd's security plan for transport and storage of explosives which is a public safety concern; and
2. releasing the remainder of the category 16 documents would release intellectual property belonging to Donnelly Blasting Pty Ltd which has commercial value to Donnelly Blasting Pty Ltd and would risk their ability to continue to be competitive.
Further, the Applicant's assertion the Respondent ultimately released, voluntarily, everything the Applicant had sought from the beginning is factually incorrect. The consent orders provide that certain information is redacted and remains undisclosed consistent with the concessions that were made by way of the Applicant's expert as summarised above.
Additionally, I also reject the allegation that that Respondent did nothing to support its case or that the Respondent's conduct "bespeaks a fundamental misunderstanding of the respondent's role under a statute". These allegations are misplaced and unsupported by the evidence and submissions filed and relied upon by the Respondent (including the confidential submissions) as well as the fact the Respondent also relied partly on Donnelly Blasting Services Pty Ltd's evidence and submissions.
However, where error is evident is the Applicant's reliance on section 60(3)(e) which requires a consideration of whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance. This section cannot be engaged in the circumstances because the proceedings were not taken by the Respondent but rather, were initiated by the Applicant with the Respondent being obligated to respond.
As for the Applicant's allegation that the Respondent did not comply with its model litigant obligations or acted inconsistently with the duty imposed by s 36(3), this contention does not find support on the facts. It is not the case, as submitted by the Applicant, that the Respondent "allowed the applicant to believe that it would resist the making of orders until the day before the final hearing on 13 June 2024. The respondent should have taken steps much earlier to say that it would capitulate, to avoid the applicant incurring the costs of preparing lay and expert evidence, which it served on 6 June 2024" [Emphasis added].
Rather, it was the delay of the Applicant in filing and serving its evidence that caused the delay in the resolution of the issues as between the parties. Whether these documents were served on the Respondent on either Thursday 6 June 2024 or Friday 7 June 2024, the Applicant was in default of the timetable set by the Tribunal and at worst gave the Respondent only three business days to consider the additional evidence and obtain instructions. Despite that short timeframe, the Respondent was able to obtain instructions to reach a consent position consistent with the expert evidence. This conduct is consistent with the Respondent's duty both as a model litigate and pursuant to the CAT Act.
In this respect, the evidence of the Applicant sits uneasily with the allegations made as against the Respondent. In addition to the default on the timetable, the Applicant admitted, in his affidavit that since on or around 10 April 2024 (being approximately two months prior to the matte being set down for hearing) he was aware that certain documents falling within category 16 were already publicly available and accessible by him. If the Applicant had access to some or all of the documents comprising the category 16 documents, which were the only category that remained in dispute, the access application to the extent it sought those documents was redundant. In this respect, information which is publicly available is exempt from production as well as information that has already been made available to the access-applicant including because it is accessible on a website: ss 59 and 60 of the GIPA Act.
For these reasons, the Applicant has not established the necessary elements for an award of costs. As for the Respondent's application for costs on this costs application - apart from seeking such costs, not reasons were otherwise articulated. I dismiss both applications and make no order as to costs.
[6]
Orders
I order that:
1. The costs application in respect of the costs of the substantive proceeding made by the Applicant is dismissed.
2. The costs application in respect of the costs of the Applicant's cost application made by the Respondent is dismissed.
3. No order as to costs.
[7]
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: 24 February 2025