Should the Respondent pay some of the Applicant's costs

4. There was effectively no dispute that section 75(2) of the Victorian Civil and Administrative Tribunal Act 1998 ("the Act") does not empower the Tribunal to make an award of costs in favour of an applicant where the Respondent's application under section 75(1) has been successful (re Grundy and Transport Accident Commission, unreported, VCAT, Davis DP, 16 October 2003). The Applicant contended that an order could and should be made against the Respondent in respect of the unsuccessful portion of the Respondent' strike-out application, applying section 109 of the Act.

5. The Respondent rightly agreed that section 109 applied to the extent its strike-out application was unsuccessful so that a costs order against it was within the Tribunal's power. I agree however with the Respondent's submission that no such order should be made in this case. The Respondent's behaviour has not been a misuse of the process available to it. The strike-out application has not unreasonably disadvantaged the Applicant - it has saved both parties the trouble and expense of preparing to deal with an application regarding four documents. I do not accept the Applicant's submission that the strike-out application has unreasonably prolonged the time taken to complete the proceeding. There were genuine issues to be considered in that application and the Respondent was entitled to have them considered.

6. The Respondent submitted that it should have its costs because the Applicant had been warned not to proceed. The Respondent said that it had warned the Applicant by a letter dated 10 January 2005 that the proceedings were "an abuse of process and a waste of both parties resources" referring among other grounds to the fact that the Tribunal had already dealt with the issues. This was as it turned out the basis of the Respondent's success in having the application struck out in respect of four of the six documents in dispute.

7. The Applicant responded to this that other grounds mentioned in the Respondent's letter, for example that the documents had been discovered in the Federal Court, did not succeed before me. That is true, although the letter did not raise the particular point unsuccessfully put to me by the Respondent, namely that the Applicant has in breach of an undertaking to the Federal Court. The Applicant also argued that the Respondent's letter overstated the case in saying all documents had been previously dealt with by the Tribunal, as this did not apply to document 2. I agree the letter was an overstatement in this respect.

8. The Applicant also pointed out that the letter invited him to withdraw the whole of the proceedings, which was ultimately not more favourable to the Applicant than the Tribunal's decision, so that the principles in Calderbank v Calderbank [1975] 3 AIIER 333 would not apply. I agree the decision was more favourable to the Applicant than the offer in the Respondent's letter of 10 January 2005.

9. The Applicant also submitted that as the Respondent was only partly successful it could not be said that the Applicant should have known he was bound to fail. That also makes sense. However the Respondent submitted that its case in relation to issues on which it did succeed (so that the application was struck out in respect of four documents) was strong, involving the straight forward application of established legal principle.

10. I agree that the legal principle was established and its application straight forward. However, before the principles could be applied I had to consider some issues of fact which, although they were not hotly disputed, could not be clearly established without consideration of the affidavits of two solicitors who had previously provided services to the Respondent and a careful comparison of the documents in these proceedings against those considered in other proceedings. This required lengthy submissions from the Respondent's counsel. I am not persuaded that the Applicant ought to have foreseen the outcome so clearly that to proceed was unreasonable in relation to the four documents I struck out of his application.

Should the Applicant pay some or all of the Respondent's costs

11. Section 75(2) of the Act empowers the Tribunal to order that the Applicant pay some or all of the Applicant's costs. It would be unfair, the Respondent submitted, that it be required to bear its own costs of the successful strike-out application. Besides submitting that the Applicant was unreasonable to proceed, of which I was not persuaded, the Respondent said, in effect, that costs should follow the event. It referred me to the words of Ball SM, in Re Patrick and Bayside CC (unreported VCAT Ball SM 7 January 2000) recently endorsed by Davis SM in Sunbury Progress Association and Hume CC [2004] VCAT 2431, which weighed up the public policy reasons for and against costs orders in FOI applications involving publically funded Respondents such as the present Respondent:

"While the Tribunal accepts that it is important that a lay person should be able to come before the Tribunal and not be affected by threat of costs, the Tribunal is of the view nevertheless that a Council should not be put to unreasonable expense in defending freedom of information applications in circumstances where a request has no tenable basis in fact or law and which incurs the expenditure of ratepayers' funds."

12. I have considered this submission and agree that the fact proceedings occur under the FOI Act does not make them immune to costs orders. There must come a point when a respondent spending public funds can expect to be reimbursed for unreasonable expense. However, given that the Respondent was not completely successful and as I consider that it was not unreasonable in the circumstances for the Applicant to proceed in relation to those issues where the Respondent did succeed, I am not persuaded that that point has been reached in this application.

13. I also take into account that a portion of the costs of both parties must be attributable to that part of the Respondent's application which was unsuccessful. While I was not persuaded the Respondent should bear the Applicant's costs in relation to unsuccessfully spent resources, I do take that into account in deciding not to order that the Applicant bear any of the Respondent's costs.

14. In all these circumstances, I am of the view that the fairest result at this point is for each party to bear its own costs of preparing for and dealing with the strike-out application.