McCabe v Workers Compensation Commission

Consideration 8I have assumed that the applicant only seeks costs of the application to the Tribunal, as the Tribunal has no power to order costs in respect of conduct occurring prior to the commencement of the proceedings, only "in relation to proceedings before it": s. 88(A). 9The applicant observed that the enquiries made by the respondent to locate documents in answer to his GIPA application were found by the Tribunal to be inadequate. He noted that there were 3 occasions when the respondent maintained that there were no documents to produce, when documents did exist, and that the effort made by the respondent to locate the documents was inadequate. As a result the applicant claimed to have been forced to incur costs. 10The respondent submitted, and I agree, that there is no suggestion that the applicant had been disadvantaged by reason of the respondent's conduct contrary to any of the paragraphs (a) (i)-(vi), (b), (c) or (d) of s. 88(1A) apply to the respondent's conduct. There was no real submission by the applicant either in relation to s. 88A(1)(b)-(d) either. The submission is made, it seems, on the basis of 'fairness' and 'any other matter that the Tribunal considers relevant': s. 88A(1)(e). 11I was referred to the matter of ADT v Commissioner of Police (2010) NSWCA 131, where Basten JA observed: Although an order varying the general rule may be made "only if" the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order. The criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. The circumstances in which fairness maybe identified are indicated by the specific attributes listed in sub-s(1A), but subject to the generality of paragraph (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in 3(b) to (g) of the [ADT] Act. 12The respondent submitted that at all times it had acted in the spirit of the GIPA Act. It noted, for example, that notwithstanding the application was incorrectly addressed to the President of the respondent, the respondent had nonetheless acted consistently with the purpose and objects of the GIPA Act and treated the application as if it were valid. Such conduct, in my view, is only appropriate. 13The respondent also submitted that it had conducted numerous searches for a nominal fee and had its officer depose in 3 affidavits as to such searches. It submitted also that following the decision, it proposed to conduct further searches. I accept that ongoing searches for minimal fee may be seen by the respondent as onerous, but such is the legislative scheme. That 3 affidavits were required was because the respondent had to conduct further searches, which, demonstrated that there were in fact further documents that had not been initially located. That further searches will now be required is a direct result of the Tribunal's findings of the inadequacy of what had been undertaken. 14While I found that the respondent had acted in good faith and that the respondent had provided the applicant with a number of documents, nonetheless I found that there were reasonable grounds to believe that there are additional documents and that the respondent should have done more to find them. The respondent submitted that it had been able to identify further documents as a result of further searches. It was unclear if this submission referred to its ongoing searches before the hearing, or if as a result of the Tribunal's decision. It was submitted that identification of further documents merely demonstrated the efforts made to comply with the GIPA application. This is only as it should be. It was also submitted that the additional documents did not add substantially to the documents already produced. This is irrelevant in that, if the documents fell within the scope of the applicant's application, then they should have been provided, other than in piecemeal fashion. 15The submission of the respondent to which I have attached most weight though arises from its observation that, while it was open to the applicant to seek an internal review by the respondent, instead he chose the more expensive course of commencing proceedings in the Tribunal: s. 82 of the GIPA Act. Neither did the applicant make an application to the Information Commissioner: s. 87 of the GIPA Act. The respondent submitted that it is unreasonable that the respondent should bear the costs of proceedings brought in those circumstances. I accept that the respondent cooperated with the applicant throughout, albeit not to the applicant's satisfaction, and ultimately, not effectively. I found at [46] that there "nothing untoward about further searches being conducted and revealing further documents in these types of proceedings" but those may have been identified during the course of an internal review or in response to review by the Information Commissioner, but the respondent was denied the opportunity to do so. The applicant chose a more expensive avenue for his recourse. 16I find that the respondent should not be penalised by a costs order.

Decision 17The Tribunal declines to make any order as to costs.

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