Jeray v Office of the Information Commissioner

Consideration

1. I will treat the request by the appellant that his application dated 23 August 2024 be dismissed as a withdrawal of that application, and dismiss it on that basis.
2. As for the balance of the application dated 10 September 2024, the appellant submits that it will be more efficient for the Appeal Panel to make a joint decision of the respondent's costs application together with the substantive appeal because a decision of the respondent's costs application will be affected by the Appeal Panel's decision in the substantive appeal, which will consider the same issues.
3. The appellant further submits that a joint decision by the Appeal Panel of the respondent's costs application together with the substantive appeal will, respectfully, enable the appellant to efficiently appeal the decisions in one case (rather than in two separate cases) in the Supreme Court of NSW.
4. The respondent submits that the first ground identified by the appellant is unpersuasive as it would plainly be more efficient for the member who constituted the Appeal Panel for the hearing of the appellant's application of 26 June 2024 to determine the respondent's related costs application of 14 August 2024. Having received written material and heard oral argument of the appellant's application of 26 June 2024, I am already familiar with the relevant issues. On the other hand, the Appeal Panel as constituted for the hearing of the appeal is not. It would cause a needless duplication of effort for the Appeal Panel as constituted for the hearing of the appeal to also consider the materials relating to the appellant's application of 26 June 2024 for the purposes of determining the costs application.
5. In any event, the suggestion that the respondent's costs application and the appeal involve the same issues is incorrect. The appellant's application of 26 June 2024 sought an order "that the respondent not be permitted to appear and be heard in the appeal proceedings." Whether such a procedural step was appropriate is separate to the substantive issues in the appeal. Equally, whether costs should be awarded due to the misconceived and vexatious nature of the appellant's application (including the manner in which it was conducted) is separate to the substantive issues in the appeal.
6. The respondent submits that the second ground identified by the appellant is also unpersuasive. There is no right to appeal any decision of the Appeal Panel to the Supreme Court. Such an appeal can only be made with leave of the Supreme Court: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) s 83(1). Accordingly, even if the convenience of the appellant in this regard were a relevant consideration (which might be doubted), it would be entitled to only minimal weight, having regard to the unlikely prospect that the Supreme Court would grant leave to appeal from a costs application (which seeks only a modest sum, especially relative to the costs likely to be incurred in the Supreme Court).
7. Finally, the respondent also submits that the case management decisions the appellant now seeks to challenge were made without objection from him. Neither at the hearing of the appellant's application of 26 June 2024, nor at the hearing of the appeal, did the appellant raise this issue, despite having the opportunity to do so. Indeed, it was the appellant who agitated for his application of 26 June 2024 to be determined separately in a preliminary hearing.
8. I am unpersuaded that it is likely to lead to the more just, quick and cheap determination of the outstanding issues in the appeal to accede to the appellant's application. In that regard, I consider that my familiarity with the decision in respect of the application of 26 June 2024, and the way it was conducted, makes it more appropriate that I determine the related costs application.
9. In respect of the appellant's convenience in lodging appeals, I give that little weight. It is most presumptuous to presuppose that an appeal from the decision on the substantive appeal, which the Appeal Panel is reserved on, will be warranted. The time to lodge an appeal from my decision in respect of the 26 June 2024 application has well and truly passed, and there is no suggestion any such appeal has been lodged. As a result, it appears my findings are unlikely to be disturbed.
10. I will dismiss the application for an order that the costs of the application of 26 June 2024 be determined with the substantive appeal.
11. In respect of the application for costs of the 26 June 2024 application, the respondent relies upon an affidavit of George Farrugia sworn on 14 August 2024 (the Farrugia affidavit). Mr Farrugia is a solicitor in the Crown Solicitor's office with day-to-day oversight of the proceedings. He deposes to the work entailed in the conduct of the 26 June 2024 application and the history of the parties' conduct of it, asserts that the relevant work costed out at $3,574.70 and attaches evidence of those issues. That evidence is unchallenged and by no means inherently improbable, and I accept it. Notwithstanding the above, Mr Farrugia confirms that the respondent seeks an order for costs only in the sum of $2,500, allowing a discount of 30% to the costs incurred.

The respondent's submissions on costs

1. The respondent acknowledges that the usual position as to costs in this appeal is governed by s 60 of the NCAT Act, meaning that each party is to pay their own costs in the appeal unless the Tribunal is satisfied that there are special circumstances warranting an award of costs.
2. For the respondent's application for costs under s 60 of the CAT Act to be successful, the Appeal Panel must be satisfied that: 1. "special circumstances" exist; and 2. it should exercise its discretion to award the respondent his costs: (Brodyn Pty Ltd v Owners Corporation - Strata Plan 73019 (No 2) [2016] NSWCATAP 224 (Brodyn) at [21], [24]).
3. The respondent submits that the Appeal Panel would be so satisfied.
4. In determining whether there are "special circumstances", the Appeal Panel may have regard to the factors set out in s 60(3) of the NCAT Act. The Appeal Panel is required to weigh up whether any factors in s 60(3) of the NCAT Act that are made out are sufficient to amount to "special circumstances" that justify departing from the rule that each party is to bear their own costs: see Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [81]; Alexander James Pty Ltd v Pozetu Pty Ltd (No. 2) [2016] NSWCATAP 75 at [14].
5. The respondent submits that the following factors, dealing with ss 60(3)(c),(e),(f) and (g) of the NCAT Act are relevant to the Appeal Panel's assessment of whether there are special circumstances in these proceedings.
6. The respondent submits that the appellant's application was based on claims with no tenable basis in fact or law and was, as found by me in part, an abuse of process.
7. The appellant's application was centred on the claim that the respondent "did not appear" in the proceedings in the Tribunal. My reasons for dismissing the application relevantly stated: "I should record that I do not accept the basic contention at the heart of the appellant's application for order one because there can be no proper suggestion that the respondent, howsoever properly named, failed to participate in the proceedings at first instance. The Crown Solicitor appeared for the respondent and there is no demonstrated basis to dispute that the Crown Solicitor was instructed by the entity, howsoever properly named, that is ultimately led by the Information Commissioner appointed by the Governor under s 4 of the Government Information (Information Commissioner) Act 2009 (NSW). That the naming convention used by the Tribunal may have changed throughout the proceedings does not alter that position, as evidenced by the fact that the relevant orders simply changed the naming convention applied to the respondent, rather than removing and adding parties."
8. The appellant accepted at the hearing that the making of order two in his application was bound up with the making of order one sought by his application: Farrugia Affidavit at [17]. The Appeal Panel also found that "the basis for the appellant's application for order two substantially arises from the issues referred to above [that is, in relation to the application for order one]". Accordingly, the Appeal Panel should find the whole of the application was based on a claim that had no tenable basis in law or fact.
9. The respondent submits that the appellant's application was frivolous or vexatious or otherwise misconceived or lacking in substance. The Appeal Panel relevantly stated in its reasons dated 18 July 2024 that "[t]here are several bases upon which the appellant's application for order one, being an order preventing the respondent appearing and being heard in the appeal, is misconceived." It ultimately concluded that "the appellant's application for order one is misconceived, and an abuse of process in the nature identified in Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16 at [71]-[72]."
10. For the reason at [26] above, the Appeal Panel should find the whole of the application was frivolous or vexatious or otherwise misconceived or lacking in substance.
11. The respondent also submits that the appellant failed to comply with the duty imposed by s 36(3) of the NCAT Act. That provision requires a party to the proceedings 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".
12. The appellant failed to comply with the timetabling direction made by the Appeal Panel to file his material by 5 July 2024. The appellant's submissions were not served until 10 July 2024 and his evidence was not served until 11 July 2024: Farrugia Affidavit at [10] and [13]. The appellant thus breached his duty under s 36(3).
13. The respondent submits that the following matters are also relevant to finding that there are special circumstances warranting an award of costs.
14. Although the respondent was aware of the nature of the application from the callover, the appellant failed to serve the respondent with a copy of the application until 7 July 2024: Farrugia Affidavit at [5] and [7]. In doing so, this caused the respondent to incur unnecessary costs involved in seeking a copy of the application from the Registry: Farrugia Affidavit at [5].
15. The appellant did not provide an explanation for his failure to comply, or advise the respondent that he intended to file material late, including in his correspondence to the respondent's representatives on 7 July 2024: Farrugia Affidavit at [7].
16. In addition to being filed late, the appellant's written submissions sought to alter the basis of the application for order one and to expand the scope of the application seeking order two. The appellant did not provide any advance notice of this, including in his correspondence to the respondent's representative of 7 July 2024: Farrugia Affidavit at [7].
17. In circumstances where the appellant was directed to file his material by 5 July and sent correspondence to the respondent's representative on 7 July 2024 and did not advise of any intention to file material late, it was reasonable for the respondent's representatives to prepare the respondent's submissions on 8 to 10 July, and to correspond with the respondent's instructing officers in relation to the filing of those submissions on 10 July 2024 (Farrugia Affidavit at [8]-[9]). The appellant's late filing of his written submissions, and the changes made to the nature of the application, caused the respondent to incur unnecessary costs in having to review and amend work that was already reasonably undertaken (Farrugia Affidavit at [11]-[12]). To a lesser extent, the respondent similarly incurred unnecessary costs as a result of the late filing of the appellant's evidence: Farrugia Affidavit at [13].
18. It is also relevant to consider that the respondent incurred costs responding to the appellant's written submissions which sought to base his application for order one as an order to remove a party under s 44 of the NCAT Act. At the hearing, the appellant accepted that his application was not really about the removal of a party: Farrugia Affidavit at [16]. Accordingly, those costs were unnecessarily incurred as a result of the appellant's conduct.
19. Weighing up the various factors set out above, the respondent submits that there are special circumstances warranting an award for costs in these proceedings.
20. In Brodyn at [24]-[25], the Appeal Panel held that the following considerations were relevant to the exercise of the discretion to award costs: "Relevant to the exercise of that discretion are those facts upon which the finding of special circumstances was based. However, those findings do not constitute the whole of the relevant matters to be considered in deciding what, if any, order for costs should be made. Rather, the principles applicable to awarding costs generally must also be taken into account. These include: 1. Costs are compensatory: see Latoudis v Casey (1990) 170 CLR 334; 2. That an unsuccessful party bears the costs of the successful party: Oshlack v Richmond River Council [1998] HCA 11 at [134]; 3. Whether, by reason of the relative success of the parties on different issues and the time taken to determine those that an order for costs based on issues should be made; see eg Bostick Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304. Further, in some circumstances where s 60 of the NCAT Act regulates an award for costs, a limited order for costs might be made to reflect the fact that only some aspects of the appeal should properly be categorised as out of the ordinary…"
21. Having regard to the factual circumstances set out above, the respondent submits that the Appeal Panel should exercise its discretion and award the respondent its costs.
22. Pursuant to s 60(4)(a) of the NCAT Act, the Appeal Panel has the discretion to determine "to what extent costs are to be paid", which has been held to empower the Appeal Panel to make a fixed sum costs order: 203 Castlereagh Street Pty Limited v Skybloo Holdings Pty Limited [2017] NSWCATAP 29 (Skybloo Holdings) at [34].
23. The principles concerning when the Appeal Panel might make a fixed sum costs order were summarised in Skybloo Holdings at [40] as follows: "(1) A fixed sum costs order involves a departure from the usual process by which costs are assessed in accordance with the statutory procedures now relevantly found in the Legal Profession Uniform Law Application Act 2014 (NSW) (especially Pt 7 dealing with 'ordered costs') and the Legal Profession Uniform Law [eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (No 2) [2015] NSWCA 422 (eInduct Systems)]; (2) A fixed sum costs order may be appropriate where: (a) the sum of costs in question is relatively modest: elnduct Systems at [30]; (b) a party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment, [Hamod v State of New South Wales [2011] NSWCA 375 (Hamod) at [813], [816] and [817], einduct Systems at [30]; (c) the assessment of costs would be protracted and expensive, Hamod at [813] and [817]; and/or (d) the case was complex, Hamod at [815]-[817]. (3) Sections 36(1) and (4) of the NCAT Act (which can be seen as equivalent to those in ss 56(1), 57(1)(d) and 60 of the [Civil Procedure] Act) suggest that the following factors merit particular consideration: (a) the relative responsibility of the parties for the costs incurred; (b) the degree of any disproportion between the issue litigated and the costs claimed; (c) the complexity of the proceedings in relation to their cost; and (d) the capacity of the unsuccessful party to satisfy any costs [liability]."
24. In the present case, where the costs are relatively modest (particularly relative to the cost and inconvenience involved in an assessment), the respondent submits that it would be appropriate for the Appeal Panel to make a fixed sum costs order.
25. The respondent incurred costs of $3,574.70 in relation to the appellant's application: Farrugia Affidavit at [18]. Having regard to [18] and [19] and annexure F of the Farrugia Affidavit, the respondent submits that an award of costs in the amount of $2,500, which represents slightly less than 70% of the costs incurred, is fair and reasonable in the circumstances.

The appellant's submissions on costs

1. In respect of costs, the appellant submits that there are no special circumstances warranting an award of costs to the respondent under s 60 of the NCAT Act for the following reasons: 1. My decision of 15 July 2024 is wrongly based (in my reasons of 18 July 2024) on the Tribunal "simply" undertaking "changes to the naming convention" of the respondent "rather than removing and adding parties" because NCAT does not have the jurisdiction to change a party's official name and leaving the lack of jurisdiction to do so aside, NCAT cannot give a party an unlawful name. 2. The appellant's miscellaneous application of 26 June 2024 is not vexatious, as it raises legitimate and necessary issues and principles of law, as well as importantly revealing, prior to the substantive appeal, my erroneous view that the Tribunal at first instance was simply engaged in changes to the naming convention of the respondent. This subsequently required the appellant to also seek that order one of 7 May 2024 be set aside (in addition to seeking the removal of the respondent from and declaring the correct respondent as the Office of Information Commissioner) in the substantive appeal because the respondent would therefore remain the incorrect party in the proceedings. 3. The appellant had initially only sought to set aside order two of 7 May 2024 in the appeal. Order two states, "[t]he decision under review is affirmed." 4. The appellant's arguments for his miscellaneous application of 26 June 2024 are more than arguable and supported by evidence, which are also utilised in the substantive appeal. 5. It is in the public interest to: 1. ensure the correct legal respondent is named in NCAT proceedings; 2. ensure that the Office of Information Commissioner, the Office of Privacy Commissioner and the Information and Privacy Commission are correctly established, named and functioning in accordance with the applicable legislation of NSW; and 3. formally correct the Information Commissioner's misplaced belief that the Office of Information Commissioner and the Office of Privacy Commissioner were dissolved when the Information and Privacy Commission of NSW was created by the Privacy and Government Information Legislative Amendment Bill 2010.
2. The above issues are matters also considered in the substantive appeal so a decision and the reasons there will either support or be contrary to my decision of 15 July 2024 and reasons of 18 July 2024.
3. The appellant also submits the respondent cannot make an application for costs under s 60 of the NCAT Act because it is the incorrect respondent in the appeal proceedings and is utilising an unlawful name (i.e. 'Office of Information Commissioner (Information and Privacy Commission'), as specified in its miscellaneous costs application, written submissions and supporting affidavit of 14 August 2024.
4. The Appeal Panel has wrongly permitted an unlawful costs application from the respondent for the reasons given above.
5. Any costs order made in the appeal in favour of the respondent will be unlawful for those reasons.
6. However, special circumstances warranting an award of costs to the appellant do exist (which should also be seen as countervailing reasons to awarding costs to the respondent) due to the respondent's protracted and unsubstantiated resistance in accepting that the Office of Information Commissioner is the correct respondent in NCAT proceedings and its dishonest and unlawful assertion of labelling itself as the Office of Information Commissioner/Information and Privacy Commission in the appeal proceedings, including in its miscellaneous costs application of 14 August 2024.
7. The appellant goes on to make assertions about the conduct of the substantive proceedings subsequent to the issues I need to consider, which are unsupported by evidence and in any event, unpersuasive.

Determination of the costs application

1. I accept that the respondent has correctly identified the relevant considerations as to costs. In addition, I would repeat what was said in STAR Training Academy Pty Ltd v Commissioner of Police (No 2) [2022] NSWCATAP 98 in respect of fixed costs orders that: "50 Deriving the relevant principles applicable to ordering costs in a lump sum from those deemed appropriate by the courts, we note that: (1) The discretion is not confined and may be exercised whenever the circumstances warrant its exercise: Harrison & Anor v Schipp [2002] NSWCA 213; 54 NSWLR 738 per Giles JA at [21]-[22]; (2) 'The power should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available.': ibid, at [22]; (3) The power must be exercised judicially and only after giving the parties an adequate opportunity to make submissions. The Tribunal should be confident that the approach taken to estimate costs is fair, logical and reasonable: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; 135 ALR 160, von Doussa J; (4) The use of the power may be appropriate where the formal assessment would disadvantage the successful party because of the likely inability of the unsuccessful party to discharge the costs liability in any event: Harrison v Schipp; Sony Entertainment (Aust) Ltd v Smith (2005) 215 ALR 788 at [90], [194]-[195]; Hadid v Lenfest Communications Inc [2000] FCA 628; (5) The power may also be exercised where a party's conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Leary v Leary [1987] 1 WLR 72; [1987] 1 All ER 261; Sony Entertainment (Aust) Ltd v Smith; Microsoft v Jiang (2003) 58 IPR 445; [2003] FCA 101; (6) The assessment of any lump sum to be awarded must consider the complexity of the issues raised on the pleadings; the interlocutory processes; the preparation for final hearing and the final hearing: Smoothpool v Pickering [2001] SASC 131; (7) In the exercise of its discretion the Tribunal is not required to undertake a detailed examination of the kind that would be appropriate to taxation or formal costs assessment: Harrison v Schipp at 743; Hadid v Lenfest Communications Inc at [35]; Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1 at 5; [1999] FCA 673; (8) A discount of the costs actually incurred or estimated may be applied, in order to take into account the contingencies that would be relevant in any formal costs assessment: Leary v Leary at [76] per Purchas LJ; Beach Petroleum NL v Johnson (No 2) at 123; Auspine Ltd v Australian Newsprint Mills Ltd at 164-165. A discount in the range of 10-30% is typically appropriate: Ross v Padget [2016] NSWSC 1851 at [16] and [21]; Fisher-Pollard by her tutor Fisher-Pollard v Fisher-Pollard [2018] NSWSC 807 at [38]). However, the appropriate order in each case will turn upon the evidence: Hamod v State of New South Wales [2011] NSWCA 375 at [813] per Beazley JA (Giles and Whealy JJA agreeing); (9) On the one hand the Tribunal must be astute to prevent prejudice to the respondents by overestimating the costs, and on the other hand must be astute not to cause an injustice to the successful party by an arbitrary 'fail safe' discount on the cost estimates submitted to the Court: Leary v Leary at 265; (10) Finality to litigation is in everyone's interest. In many cases that factor alone will weigh heavily on whether a lump sum costs order should be made: Edward Ted Lakis and Anor v Michael Victor Lardis and Anor (No 3) [2018] NSWSC 1296 at [57]; Lawcover Insurance Pty Ltd v Muriniti and Newell [2018] NSWSC 558 at [10]; (11) Where a lump sum costs order is appropriate, the Tribunal should take a 'broad brush' approach to determining the lump sum: Harrison v Schipp; (12) Requiring the same or similar level of detail as in a formal costs assessment would defeat the purpose of the lump sum order.' Bechara (T/as Bechara and Co) v Bates [2016] NSWCA 294 at [14]."
2. I also note that in Ausino International Pty Ltd v Apex Sports Pty Ltd [2006] NSWSC 1119, Campbell J described the usual exercise of the discretion in interlocutory matters as follows: "[55] In contrast, the present proceedings before me are brought on the basis that they are an interlocutory process. The usual order which is made as to costs concerning interlocutory processes, is that if the plaintiff is the applicant, and succeeds, then the costs of the interlocutory process become the plaintiff's costs in the cause, while, if the plaintiff is the applicant, and loses, the usual order is that the plaintiff pay the defendant's costs of that application. [56] The rationale for that arises from the way that interlocutory proceedings are intended to advance the final hearing. If a plaintiff has a victory on the way to a final hearing, whether that victory is ultimately one which is fruitful will depend upon whether the plaintiff succeeds in the final hearing. However, if the plaintiff brings an interlocutory application and loses, then that interlocutory hearing is one which will, irretrievably, have cost the defendant money, and the justice of the situation is that the defendant should be indemnified for those costs, regardless of the outcome of the proceedings."
3. This determination as to costs is not an opportunity for the appellant to revisit my determination of his application of 26 June 2024. On that basis, I will not engage with the appellant's assertions of error in that decision.
4. Whilst I agree with the appellant's assertion that ensuring the correct respondent is named in NCAT proceedings is important, that was not in issue in the application of 26 June 2024. At that time, neither party was agitating for a change to the naming convention of the respondent used in the appeal.
5. Nor does the potential that the respondent remains misnamed in the proceedings make an order for costs "unlawful," or even inappropriate.
6. Beyond that, I am satisfied that there are special circumstances warranting an award of costs in the respondent's favour, for the reasons contained in respondent's submissions set out at [26] to [28] above, which I accept as correct. The application in respect of order one was an abuse of process, and therefore lacking in substance, as I found in the substantive decision. In respect of order two, the application in that regard was frivolous, noting my finding that making the order sought "would not advance the appellant's case on appeal. It would not better apprise the appellant of the respondent's position. It would simply either have no real effect or lead to the need to direct the respondent to lodge a different reply to appeal, which is an unwarranted cost." Those are relevant considerations: NCAT Act, s 60(3)(e). The matters outlined in the respondent's submissions at [31] to [38] above simply reinforce the position that there are special circumstances that warrant an award of costs in the respondent's favour.
7. I am also of the view that a fixed sum order is warranted and can be determined in a way that is fair between the parties. I have sufficient confidence in arriving at an appropriate sum on the materials available, particularly where no challenge to the amount claimed has been made and the respondent acknowledges that a significant discount to the actual costs should be applied. I consider the following factors to weigh heavily in favour of fixing the costs: 1. The discrete nature of the costs sought; 2. The relatively small amount involved; and 3. The potential for the assessment process to be protracted and expensive, in a manner disproportionate to the amount claimed.
8. Having reviewed the claim for costs as contained in the Farrugia affidavit, I am satisfied that the amounts claimed are, on a broad brush assessment, within a reasonable range. Any potential for injustice in dispensing with the assessment process is alleviated by the substantial discount to be applied.

Orders

1. My orders are as follows: 1. A hearing of the Respondent's application for costs of the Appellant's Application for Miscellaneous Matters dated 26 June 2024 is dispensed with. 2. A hearing of the Appellant's Application for Miscellaneous Matters dated 23 August 2024 is dispensed with. 3. A hearing of the Appellant's Application for Miscellaneous Matters dated 10 September 2024 is dispensed with. 4. The Appellant is to pay the Respondent's costs of the Appellant's Application for Miscellaneous Matters dated 26 June 2024 in the fixed sum of $2,500. 5. The Appellant's Applications for Miscellaneous Matters dated 23 August 2024 and 10 September 2024 are dismissed.

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: 04 October 2024