Hutchinson v Roads and Traffic Authority

REASONS FOR DECISION Introduction 1 On 6 August 2004, Mr Hutchinson (the applicant) applied to the Roads and Traffic Authority (the agency) under the Freedom of Information Act 1989 (FOI Act) for access to documents relating to premature road pavement failure or unnecessary road pavement rehabilitation in some areas of the Hume Highway and the Newcastle Freeway. When the agency first received the application for documents, it interpreted the request as applying to documents that had been audited by the Audit Office. The agency made a determination that the documents were exempt because they related to the audit and investigation functions of the Auditor General and also because they were the subject of secrecy provisions. That decision was affirmed on internal review by letter dated 22 September 2004. I will refer to this decision as the "internal review" decision. 2 It was only after the applicant lodged his application in the Tribunal in November 2004, and the parties attended a planning meeting in January 2005, that the agency understood that the applicant was not requesting the audited documents but the documents held by the agency. Officers from the agency made further inquiries in response to suggestions from the applicant and reported back to him at a further planning meeting on 19 April 2005. The applicant then wrote a letter to the agency dated 25 April 2005 narrowing his request to nine categories of documents. In response to that request, the agency verbally refused access to the documents on the basis that the work involved would substantially and unreasonably divert the agency's resources away from their use by the agency in the exercise of its functions: FOI Act, s 25(1)(a1). I will refer to this decision as the "resources exception" decision. 3 The applicant obtained legal representation prior to the hearing and, by letter received the day before the hearing, and again during the course of the hearing itself, narrowed his request for documents. I decided in Hutchinson v Roads and Traffic Authority [2006] NSWADT 21 (the first decision) at [10] to [12], that the Tribunal did not have jurisdiction to make a decision on the basis of either of the applicant's further amended applications for documents. The reason for that decision was that the agency's assessment of the extent to which its resources would be diverted if it provided the documents, was based on providing access to the documents that the applicant requested in the letter dated 25 April 2005. If the applicant reduces the number or description of documents to which he seeks access, the agency's decision is redundant because it applies to the documents originally sought. The Tribunal does not have jurisdiction to make a fresh decision based on an application that the agency has not itself considered. 4 Having come to that view, I directed the parties to file and serve submissions as to whether the Tribunal has power to remit the decision to the agency for reconsideration and, if so, whether it should do so. They are the issues for determination in these proceedings. Both parties agreed that the Tribunal has power to remit the decision, although they disagreed as to which decision could be remitted. The agency said that the decision that should be remitted is the resources exception decision while the applicant submitted that it was the internal review decision. 5 In answer to the question of whether the Tribunal should remit the decision, the agency said that the Tribunal should not remit either the internal review decision or the resources exception decision. The applicant said that the Tribunal should remit the internal review decision so that the agency could respond to the applicant's latest application for documents. Remittal power 6 I agree with the submissions of both parties that the Tribunal has power to remit the "reviewable decision" to the agency. Section 65 of the Administrative Decisions Tribunal Act 1997 (ADT Act) states that: (1) At any stage of proceedings to determine an application for a review of a reviewable decision, the Tribunal may remit the decision to the administrator who made it for reconsideration of the decision by the administrator. (2) If a decision is so remitted to an administrator, the administrator may reconsider the decision and may: (a) affirm the decision, or (b) vary the decision, or (c) set aside the decision and make a new decision in substitution for the decision set aside. (3) If the administrator varies the decision: (a) the application is taken to be an application for review of the decision as varied, and (b) the person who made the application may either: (i) proceed with the application for review of the decision as varied, or (ii) withdraw the application. (4) If the administrator sets the decision aside and makes a new decision in substitution for the decision set aside: (a) the application is taken to be an application for review of the new decision, and (b) the person who made the application may either: (i) proceed with the application for review of the new decision, or (ii) withdraw the application. 7 Section 65(1) gives the Tribunal a broad discretionary power to remit a reviewable decision "at any stage" of the proceedings. Ms Allars, representing the agency, set out a useful summary of the New South Wales and Commonwealth case law relating to remitting a decision to an agency. However, none of those cases involved fact situations which are analogous to this case. In Poudyal v Minister for Immigration [2005] FMCA 265 at [48] Smith FM stated that: ... [I]n the normal structure of Commonwealth merits review it is the expectation of the legislature that a Tribunal exercising all the powers of decision vested in the primary decision-maker will fully exercise the relevant power and try to bring finality to the particular administrative process involved. On this basis, the power of remitter is a supplementary power designed to be used when a Tribunal considers it appropriate and administratively efficient in the circumstances to allow the primary administrator, rather than itself, to complete that process. Identification of reviewable decision 8 Before deciding whether or not I should exercise my discretion to remit the "reviewable decision" I should highlight a disagreement between the parties as to what the reviewable decision is in this case. The applicant submitted that the Tribunal was not correct when it found in its first decision, that the "reviewable decision" was the resources exception decision. The Tribunal said in the first decision at [6] that: The RTA submitted that it was the RTA's decision, based on Mr Hutchinson's request of 25 April 2005 that is the reviewable decision in this case. Mr Hutchinson did not make any submissions to the contrary. I find that the decision under review is the RTA's determination to refuse access to the documents requested in Mr Hutchinson's letter of 25 April 2005. 9 The applicant submitted that this finding was wrong for two reasons. Firstly, there was no written determination by the agency in response to the applicant's letter of 25 April 2005. Secondly, the agency did not have power to make a new determination once the applicant had made an application to the Tribunal for external review of the agency's internal review decision. Because the agency did not apply for the matter to be remitted under s 65 of the ADT Act it could not make a new decision at that stage. Consequently, according to the applicant, the reviewable decision is the internal review decision. I decided in the first decision that the reviewable decision was the resources exception decision. The applicant's lawyer recognised that it was not appropriate to formally challenge the Tribunal's finding, except by way of appeal, but said that the correctness or otherwise of that finding is relevant to the question of whether the Tribunal should now remit the "decision" to the agency under s 65 of the ADT Act. 10 I will deal firstly with the question of whether I should remit the resources exception decision. In case I am wrong, and the reviewable decision is the internal review decision, I will go on to decide, hypothetically, whether I would exercise my discretion to remit that decision. Resources exception decision 11 Relying on the passage set out at [48] in Poudyal v Minister for Immigration [2005] FMCA 265, the applicant submitted that where the Tribunal is unable to "fully exercise the relevant power and try to bring finality to the particular administrative process involved", the power of remitter is appropriate. In addition it can be used when it is "appropriate and administratively efficient in the circumstances" to remit rather than dismiss a matter. According to the applicant, a factor relevant to the exercise of the Tribunal's discretion includes "bring[ing] finality to the particular administrative process" expeditiously and cheaply. 12 The crux of the applicant's submission is that if the Tribunal remits the reviewable decision, the agency could make a determination on the basis of the applicant's amended request. The agency disagrees with that submission saying that if the application for access to documents to which the decision relates has effectively been withdrawn, or even if part of the application has been withdrawn, there is no utility in remitting the decision under s 65. 13 Section 65 allows the Tribunal to remit a "decision" for "reconsideration". The decision based on the resources exception relates to a request the applicant made on 25 April 2005 for access to nine categories of documents. The agency's decision was to refuse to provide access to the documents on the basis that the work involved would substantially and unreasonably divert the agency's resources. The applicant amended that request the day before the hearing and again on the day of the hearing. The effect of that amendment was to request access to fewer documents than originally requested. There is no point in the Tribunal remitting the agency's decision for reconsideration as the applicant is now seeking access to fewer documents. The agency would not be reconsidering its decision but making a fresh decision as to whether providing access to those documents would substantially and unreasonably divert the agency's resources. The discretion to remit a decision under s 65 allows the agency to reconsider its original decision, not to make a new decision based on a different request. Internal review decision 14 If I was wrong in the first decision, and the "reviewable decision" is not the resources exception decision but the internal review decision, should I exercise my discretion to remit that decision? The internal review decision was a decision that the documents originally requested were exempt because they related to the audit and investigation functions of the Auditor General and also because they were the subject of secrecy provisions. The request for documents to which that decision relates was in broader terms than the later request. Since the agency declined to give access to the later, narrower request for documents, relying on the resources exception, it is highly likely that the agency would also rely on the resources exception in relation to a broader request for documents. In those circumstances there is no utility in remitting the internal review decision to the agency for reconsideration. Consequences for the applicant 15 I accept that this conclusion has some unfortunate consequences for the applicant. As Mr Zipser points out, it may mean that the applicant has to make a fresh application for documents to the agency. The agency may be entitled to object to another application being made for similar documents, but I make no comment on the potential merits of any such objection. A new application would obviously delay the applicant's request further. There is a public interest in this matter being resolved expeditiously and cheaply. It is arguable that remittal of the decision would achieve that objective. Nevertheless, the Tribunal is a creature of statute and, in freedom of information cases, only has the powers given to it by the ADT Act and the FOI Act. The power under consideration is the power in s 65 to remit a decision to the agency for reconsideration. While the Tribunal has the power to remit the resources exception decision and, arguably, the internal review decision, there is no utility in doing so because neither of those decisions relates to the applicant's current request for documents. Costs 16 The agency applied for costs against the applicant. The rule to be applied when deciding whether to award costs is set out in s 88(1) of the ADT Act: 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 there are special circumstances warranting an award of costs. 17 To amount to "special circumstances," the circumstances must be "seriously beyond the usual or ordinary pursuit of a claim so that it would be seriously unfair to a party not to be awarded some or all of its costs where it has been successful": Stefopoulos v Manikas (No 3) [2004] NSWADT 172 at [33]. In Brooks Maher v Cheung [2001] NSWADT 18 at [14] the Tribunal said that "where one party causes another party to incur costs because of unreasonable delays, or by making misconceived, frivolous, vexatious or insubstantial procedural or substantive applications, an award of costs may be warranted." In another FOI case, the President gave guidance as to the sort of circumstances that would justify as order of costs: If a citizen continues to press an application in circumstances where it is reasonable to conclude that the applicant had enough understanding of the Act as to be likely to appreciate that the application was an empty one, then some sanction should be administered by the Tribunal in the form of a costs order: Miriani v Commissioner for Fair Trading [2005] NSWADT 99 at 37 Special circumstances warranting costs orders in past cases have included: (i) commencement of proceedings that are untenable at law or "entirely without substance or merit" or which have "no real prospects of success" (although this does not determine the issue finally, particularly when the party is unrepresented) Kolavo v Pitsikas and Conomos [2003] NSWCA 59, Trust Company of Australia Ltd v Craig & Ors [2005] NSWADT 65 at [43], Murphy v David Jones Limited [2002] NSWADTAP 42 at [16], Lloyd v Veterinary Surgeons Investigating Committee (Disciplinary Order: Inquiries 1 ('Chisel'), 2 ('Gypsy') and 3 ('Remus')) (No 2) (GD) [2005] NSWADTAP 15 at [41]-[42]; and (ii) conduct which results in avoidable costs being incurred by the other party: Charteris v General Manager, Leichhardt Municipal Council (No. 2) (GD) [2001] NSWADTAP 39 at [36]. 18 Listed below are the "special circumstances" the agency says warrants an award of costs and the applicant's response: (i) the agency engaged in consultation with the applicant in planning meetings in good faith; Response: the applicant accepts this but says it is not a special circumstance. (ii) although the agency is unable to adduce evidence in support, the agency instructs that at the March planning meeting it foreshadowed making a costs application; Response: the applicant says that there has been a number of cases which have made the point that where a party seeks an unusual costs order against another party, a relevant factor in the exercise of the court's discretion is whether the party seeking the order has warned the other party of that fact: Duskwood Pty Ltd v Bellara Willows Pty Ltd [2001] WASC 281 at [18] per Steytler J; Waiviata Pty Ltd v New Millennium Publications Pty Ltd [2002] FCA 481 at [6] per Sundberg J. (iii) the applicant pursued the original request for access until the day before the hearing; Response: the applicant says this is not a special circumstance. (iv) the applicant changed his request for access again on the day of the hearing; Response: the applicant says this is not a special circumstance. In relation to both (iii) and (iv), the applicant says that it is common for parties involved in a dispute before a court or tribunal to compromise their original position in order to resolve the dispute. There is a public interest in parties doing so and a party should not be subject to an adverse costs order for engaging in that conduct. (v) the applicant required all the agency's witnesses to attend the hearing; Response: the applicant clarified that one of the agency's witness, Phillip Youngman, was not required for cross-examination. Further, requiring witnesses for cross-examination is not a special circumstance. (vi) the applicant failed to provide written submissions prior to the hearing; Response: the applicant says he was not required to file and serve written submissions prior to the hearing and that even if he was required to do so, the agency has not shown that it incurred additional costs as a result of his default. (vii) the applicant's extensive cross-examination of the agency's witnesses relating to the location of documents and estimated time spent copying and collating them served no forensic purpose, given that the applicant did not challenge the agency's case that the number of documents was voluminous and that their identification required the expertise of particular engineers with administrative support; Response: the applicant asserts that the cross examination did serve a forensic purpose because, in the case of Lynette Furness, Tony Sharoo and Volodymer Bilaniwskyj, it was appropriate to test their evidence concerning the time it would take to locate the documents he was seeking. For Volodymer Bilaniwskyj and Julian Bechini it was permissible and appropriate to question them on, among other things, the location of relevant files. For Charles Smith, it was also permissible and appropriate to test his evidence. Furthermore, if Mr Zipser's conduct in cross examining the witnesses was an abuse of process, which it was not, that may be a special circumstance. If Mr Zipser's conduct in cross examining the witnesses was unreasonable, then the agency would have to show that it incurred additional costs as a result of that conduct. It has not done so. (viii) the applicant put no questions to the agency's witnesses which went to their credit (including no questions relating to the number of documents and the expertise and administrative support required to identify them). Response: the applicant says this is not a special circumstance. 19 I agree with the applicant that in the context of this case, the matters listed under (i), (iii), (iv) (v), (vi) and (vii) do not constitute, either separately or together, "special circumstances" warranting an award of costs. This is not a case where the applicant continued to press his application knowing or suspecting that the Tribunal lacked jurisdiction to determine it. It is unfortunate that neither the Tribunal nor the parties foresaw, either before or during the hearing, that a narrowing of the applicant's request for documents would deprive the Tribunal of jurisdiction to determine the application. As the applicant did not appreciate the implications of narrowing his request, he was justified in requiring all but one of the agency's witnesses for cross examination and in cross examining them on relevant aspects of their evidence. 20 I deal now with the agency's assertion that it foreshadowed to the applicant that it would be making a costs application. Even if I accept that the agency did foreshadow that possibility, I am not persuaded that there are exceptional circumstances justifying a costs order. I do not accept the applicant's proposition that any failure to warn another party of its intention to apply for costs, is a factor that is relevant to the exercise of the Tribunal's discretion under s 88. As the agency pointed out, the cases cited by the applicant relate to unusual costs orders, including costs against non-parties and applications for indemnity costs in court based litigation. There is nothing in s 88(1) of the ADT Act, in the Tribunal's Practice Note No 12, or in the relevant case law which suggests that it is appropriate for the Tribunal to give any weight to the absence of a warning when exercising its discretion. Orders 1. Application dismissed. 2. No order for costs.

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