This is an application for costs brought by the applicant in the substantive proceedings. The substantive proceedings concern an application for government information by the applicant from the respondent agency. The applicant sought administrative review of that application (and decision) in the Tribunal under both the Government Information (Public Access) Act 2009 and conforming with the provisions of the Administrative Decisions Review Act 1997 where applicable.
[2]
The Tribunal's power to award costs
The Tribunal's power to award costs is set out in section 60 of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act"). That section is in the following terms:
60 Costs
(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.
(4) If costs are to be awarded by the Tribunal, the Tribunal may:
(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014 ) or on any other basis.
(5) In this section:
"costs" includes:
(a) the costs of, or incidental to, proceedings in the Tribunal, and
(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
In my view it is clearly evident from the section that the intention of the legislature was that proceedings in this Division of the Tribunal be in effect a 'non costs jurisdiction'.
This view is supported by the words of the statute in section 60 (2) that costs may only be awarded in special circumstances. It follows that in this jurisdiction the ordinary rule is that each party to proceedings before the Tribunal is to pay its 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.
Subsection 60(2) gives the Tribunal a wide discretion to award costs where it is satisfied that there are 'special circumstances' that warrant an award of costs. This appears to be a two stage test or approach. In order to enliven this provision there must be circumstances which are out of the ordinary but not necessarily extraordinary or exceptional.
Section 36 (3) - as referred to in section 60 (1) (f), provides the following obligation on the parties by reference to the guiding principle:
1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
….
(3) Each of the following persons is under a duty 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:
(a) a party to proceedings in the Tribunal,
(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.
The case of Bischoff v Sahade & Owners Corporation SP 62022 [2015] NSWCATAP 196 at paragraph 24 sets out the position in relation to NCAT.
24. The power to make an order for costs is regulated by s 60 of the NCAT Act which requires the Appeal Panel to be satisfied there are special circumstances. This means there must be circumstances which are out of the ordinary but not necessarily extraordinary or exceptional: see Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120. The appellants point to various criteria in s 60(3) of the NCAT Act and say that those circumstances exist in the present proceedings. In particular that the proceedings have been unnecessarily prolonged, the first respondent was unsuccessful in relation to a number of issues raised on appeal (some of which were said to have no tenable basis) and that in all the circumstances this appeal was out of the ordinary.
As set out above, subsection 60(3) provides that in any application of the costs provision, the Tribunal may have regard to a range of factors. These factors include the subsection 60(3) (g) broad provision referring to "any other matter that the Tribunal considers relevant." In my view, by the inclusion of section 60 (3) (g) it is clear that the legislature intended that the listed factors set out in section 60(3)(a) to (f) are not meant to be an exhaustive list of what constitutes "special circumstances".
The Tribunal sitting in a 'non costs' division has recently reviewed the approach and basis to a costs decision under section 60. In the case of Hennessey v Roads and Maritime Services; G B Holdings Pty Limited v Roads and Maritime Services [2017] NSWCATOD 152 Senior Member Montgomery recently reviewed the costs provisions. When looking to consider whether to make an award of costs he examined the steps following the application of section 60. At paragraphs 13 - 16 the following position was stated:
13. However, as the Appeal Panel noted in Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38, it does not follow that a costs order should be made because some factors are made out.
14. The discretion to award costs must be exercised judicially having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs: eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at paragraphs [37] and [48]; Nguyen & Anor v Perpetual Trustee Company Ltd; Perpetual Trustee Company Ltd v Nguyen & Anor (no 2) [2016] NSWCATAP 168 at paragraph [16].
15. It remains necessary for the Tribunal to determine whether the circumstances are sufficient to amount to 'special' circumstances that justify departing from the ordinary rule that each party bear their own costs. That is, to determine whether the factors relied upon by the Applicant, separately or in combination, establish special circumstances warranting an award for costs.
16. Subsection 60(3)(f) refers to the duty imposed by section 36(3). Section 36(1) of the NCAT Act sets out the "guiding principle" for the NCAT Act and the procedural rules, in their application to proceedings in the Tribunal. These are to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
[3]
The Applicant's claim
The applicant claim in summary is that the respondent has conducted the proceedings in a manner to disadvantage the applicant, unreasonably prolonged the proceedings, and pursued a claim where there was no tenable basis in law.
In issue was the position that the respondent relied on unfounded grounds to withhold the information under the Government Information (Public Access) Act 2009 (the GIPA Act) by claiming at the time of the GIPA Act decision (after the proceedings had been commenced) that many of the documents sought were cabinet in confidence and therefore precluded from release under Schedule 1 of the GIPA Act.
A further argument was that the respondent failed to comply with the various orders of the Tribunal to file and serve material prior to hearing, and was persistently late in their compliance. Other arguments were ventilated by the applicant, in particular concerning the respondent's attitude to the efficient disposition of the matter post hearing date. Reference to the unsolicited evidence sought to be tendered on the date of the hearing was made, and the asserted reluctance of the respondent to obtain instructions concerning the ability to conduct a search of the General Manager's e-mails.
[4]
The Respondent's position
The respondent resisted the applicant's costs application. In summary they submitted that as the substantive matter was disposed of by way of consent orders or a settlement, and the merits of the decision were not determined by the Tribunal, no costs should be payable.
The respondent relied upon the general principle in costs jurisdictions (Civil Courts) that when proceedings are settled, without a hearing on the merits, the usual order is that each party bear their own costs. The Tribunal notes that there may be some departure from this approach, such as a costs order included in consent orders, or an specified order that each party bear their own costs or similar.
In addition the respondent submitted that the proceedings (if heard) are not proceedings where the outcome would have been obvious to the Tribunal, in that they submitted that 'these proceedings are not proceedings that the Tribunal can be almost certain that one party or the other would have won to warrant the making of an order for costs'.
[5]
Applicant's reply
In submissions in reply the applicant stated that:
3… Once commenced, the proceedings were further protracted by unilateral decisions by the respondent to limit the scope of its searches, with searches producing documents occurring after several appearances and a listed hearing.
4. The result was that only 8 months after the application under the Government Information (Public Access) Act 2009 (GIPA Act) was made, reasonable searches were concluded, and documents were produced which would not have been available to the applicant but for these proceedings.
5. It is on that basis that the applicant continues to maintain that costs incurred were the result of exceptional failures by the respondent.
The applicant refuted many of the factual assertions of the respondent pertaining to the conduct of the proceedings.
[6]
Consideration
I have carefully considered all of the material filed by the parties on this application and even if I have not specifically referred to it in these reasons, I have taken it into account. I have had regard to the guiding principle in both the disposition of the substantive proceedings and this application.
The respondent relied on the case of Styles v Wollondily Shire Council [2017] NSWCATAP 108 which concerned a GIPA Act case. At the conclusion of that decision the Appeal Panel examined the question of costs (as sought by the respondent agency) and found that special circumstances existed warranting an award of costs.
Costs
….
As can be seen from the terms of subsection 60(1), the starting point in the respondent's application for costs is that each party pay its own costs. Subsection 60(2) gives the Tribunal a discretion to award costs if it is satisfied that there are "special circumstances warranting the award of costs." That is, even if the Tribunal is satisfied there are special circumstances, the Tribunal must also be satisfied that such circumstances warrant an award of costs.
The matters the Tribunal can have regard to in determining whether there are special circumstances warranting an award of costs are those set out in subsection 60(3).
In Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11], the Appeal Panel cited with approval the meaning of the expression "special circumstances" that had been given to the same expression in s 88 of the former Administrative Decisions Tribunal Act 1997 (NSW), by the Court of Appeal in Cripps v G & M Mawson [2006] NSWCA 84 at [60]. That is, special circumstances are "circumstances that that are out of the ordinary" - they do not have to be "extraordinary or exceptional".
In ACT Builders v Haridemos (No 2) [2016] NSWCATAP 118 at [41], the Appeal Panel noted that the mere fact a party was unsuccessful in their appeal does not of itself give rise to special circumstances warranting an order for costs in favour of the other party. The same applies where the appealing party was successful in their appeal.
The onus is on the party seeking an order for costs to satisfy the Tribunal that there are special circumstances warranting an award of costs in their favour.
In its submissions, the respondent made reference to the appellant's legal qualifications and contended that, with one exception, the claims made by the appellant in her appeal and application for leave to appeal had no tenable basis in fact or law and were misconceived and lacking in substance.
The exception, referred to by the respondent was the claim that the Tribunal had no jurisdiction to make order (1).
The appellant, in her submissions on costs reiterated in some detail the settlement negotiations between herself and the respondent prior to the hearing of her appeal and application for leave to appeal. She also contended that her claims did not give rise to any special circumstances. She went so far as to assert the respondent's refusal to deal decision revealed "a tendency by the respondent to deceive and mislead for its own ends." In conclusion, the appellant submitted that in the event we were minded to award costs to the respondent, these costs should be "costs in the cause". In our opinion on the material before us there is nothing to support the appellant's assertion or her contention that a cost order, if made, should be an order for costs in the cause.
Based on our findings above, we agree with the respondent's contention that the appellant's grounds of appeal and application for leave to appeal, other than ground 1, had no tenable basis in fact or law and were misconceived and lacking in substance. We have also found that these grounds were largely a re-agitation of the matters raised by the appellant at the hearing before the Tribunal, which had been comprehensively dealt with by the Tribunal in its published reasons for decision. As the Appeal Panel has often said, an appeal is not a re-hearing of the application before the Tribunal below. What an appellant must establish to succeed in an appeal is that the Tribunal either erred in law or the Tribunal erred in other ways and it is appropriate to grant leave to appeal.
In regard to the ground the appellant did succeed, this was a ground which we have found to be legally correct, but one which had no adverse affect on the interest of the appellant at first instance or on appeal.
While we accept the appellant is not a solicitor, she does have legal qualifications. Notwithstanding these qualifications, as we have noted in paragraph 70 above, the appellant has pursued a ground of appeal that was of no practical effect on her claim in regard to the respondent's decision to request and advance deposit. Her grounds of appeal and application for leave to appeal were otherwise confusing and lacked merit.
Section 36 of the NCAT Act sets out the guiding principles to be applied to the practice and procedure of the Tribunal. That section relevantly provides as follows:
"36 Guiding principle to be applied to practice and procedure
(1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
(2) …
(3) Each of the following persons is under a duty 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:
(a) a party to proceedings in the Tribunal,
(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. …"
In our opinion the appellant cannot be criticised for not co-operating with the Tribunal, or failing to comply with the orders of the Tribunal. However, in our opinion, the respondent was unnecessarily disadvantaged through the appellant's pursuit of an appeal on a ground that had no practical effect on her overall interests and on other grounds that lacked merit and had been fully dealt with by the Tribunal.
In our opinion, the respondent's refusal of the appellant's offer of settlement prior to the hearing is also of no assistance to her. Her offer was in effect a counter offer of the settlement offer the respondent had made in a letter dated 11 July 2016 following the first call over of the appellant's appeal before Principal Member Harrowell. In our opinion, having regard to the correspondence between the parties, the appellant was unlikely accept any form of settlement offer, other than to be provided with access to the information that had been located and her determining whether it was information she wanted a copy of for her own research. As we have explained and the Tribunal before us, under the GIPA Act, an agency is not obliged to deal with an access application in this way where the scope of the information sought is wide.
Accordingly, for the reasons set out above, we find that there are special circumstances warranting an award for costs in favour of the respondent.
The respondent submitted that it did not conduct the proceedings in a manner which unnecessarily disadvantaged the applicant. They submitted that the initial withholding of the Urban Growth NSW material was made with basis and reasons, namely the third party's claim that the material was characterised as being cabinet material. The respondent submitted that following further consultation the third party positions changed, and as a result they undertook a review.
The respondent also submitted that they (on a discretionary basis) engaged with the applicant's further requests for details of searches undertaken and other ancillary matters, and that this was particularly so after the hearing had commenced, and the respondent was under no obligation to accede to such requests having made their (delayed) GIPA decision.
The respondent submitted that after the hearing date, and the matter had effectively commenced, (para 67 (g) respondent's submissions)
(g) The applicant's continued conduct in failing to confine the issue in dispute and by altering the scope of its application each time the respondent agreed to undertake further searches or tasks (which could be outside its obligation under the GIPA Act, but were in any event performed in an attempt to resolve the issues) significantly prolonged the time taken to complete the proceedings.
In my view these proceedings followed a somewhat unfortunate trajectory from the date the matter was to be dealt with at hearing. When the matter came before me on 23 June 2017 for hearing both parties sought to file further evidence at the hearing that had only been served one day or less than one day prior.
The respondent sought to tender an affidavit of James Carwyn Francis Matthews sworn 22 June 2017. The respondent sought to tender an affidavit of Bianca Lewis sworn 22 June 2017. Both parties objected to the proposed tender at this stage in part because they submitted that they had not had sufficient time to consider the contents of the affidavits and take instructions.
I note that the applicant's costs submission in reply concede the following matters:
24. In relation to paragraphs 38-40, the respondent failed to mention that the Senior Member considered that the matter was part-heard on 23 June 2017. In substance, with both parties having served material Affidavits the day before, with the issues raised in the Affidavit's unresolved, and neither witness in attendance, the Tribunal could not meaningfully proceed to conclude the hearing.
In such circumstances, notwithstanding the applicant's observations about the conduct of the respondent in its initial decision making and compliance prior to hearing, I have difficulty in accepting a submission that exceptional circumstances (against the respondent) have been made out.
However I have less difficulty with the position that the respondent delayed the searching of the General Manager's e-mails in order to comply with the agreed request concerning further information held by Council.
In my view the contents of any employee e-mail were a matter for the Agency to address under the provisions of the GIPA Act, and no permission was necessary (other than possibly as a professional courtesy if practical). However by this time (other than consent orders) the proceedings were effectively off-line in that the parties were (by consent) exhausting alternate dispute type approaches to determine if the proceedings could then be ultimately withdrawn.
In such a context, an argument that special circumstances arose envisaged by a party's failure to comply, is in my view problematic.
Whilst the respondent changed its position and provided more documents during the period that the matter was before the Tribunal, and ultimately by the 22nd of August 2017 had addressed all of the applicant's requirements for 'information' concerning the substantive GIPA matter, I observe that this is not particularly unusual when considering how agencies respond to GIPA requests. In practice some applications are not straightforward in respect of the information sought. Coupled with this is the integrity and efficiency of an agency's record keeping system facilitating the efficient and satisfactory processing of an application.
This is clearly a less than ideal situation (especially from an applicant / consumer perspective) however the situation outlined in the preceding paragraph whilst not unprecedented, is not in my view completely at odds with the objects of the GIPA Act.
Ideally the Act contemplates an efficient and somewhat seamless transactional mechanism for citizens to avail themselves of government information. It would be fair to observe that the illustrated situation is less than ideal and does little to facilitate the GIPA objects, but that is not to say that it subverts those objects. Each situation will have unique features and need individual scrutiny. Systemic failures or problems in respect of the operation of the GIPA Act can be matters for comment by the Tribunal, but are within the responsibilities of the Information Commissioner's functions and the Legislature generally.
Nothing in the current matter however (in my view) falls into this category or the 'oversight' provisions contained at sections 110 to 120 of the GIPA Act (inclusive).
However the practical difficulties, which arise, are both real, and in some manner envisaged within the GIPA Act by references to how applications are decided, advanced deposits and provisions to defeat the unreasonable diversion of an agency's resources.
Had this matter proceeded to hearing, for the reasons outlined above the prior history and technical non- compliance with various timetable orders would not (in my view) of itself amounted to special circumstances.
In addition, the basis of the adjournment on the date of the hearing, and the fact that the further conduct of the proceedings (until eventual settlement of the substantive matters on 22 August 2017), save as to costs was all managed by consent, lead me to the further conclusion that special circumstances have not been made out.
The current case is in my view not analogous to the observations and findings concerning a particular party in the case of Styles. Nor does it illustrate the type of mischief that the Appeal Panel was considering in the case of Bischoff. Unlike Bischoff the merits were not determined and no party was substantially successful or unsuccessful.
At paragraphs 65 - 72 of Hennessy the Tribunal considered whether various denials of procedural fairness and natural justice by the respondent regulator constituted grounds where special circumstances might be invoked.
The Tribunal observed:
65. In my view the Respondent's failure to provide the Applicants with an opportunity to provide submissions in regard to the issues of:
whether or not disciplinary action should be taken; or
the Respondent's failure to provide reasons as to why it was of the opinion that Mr Hennessey may have been engaged in fraudulent or dishonest conduct or activity in connection with the licensee's business as a tow truck operator; or
why the Respondent was of the opinion that it was in the public interest that it take immediate disciplinary action against the Applicants
does not alter the fact that the Respondent was entitled to take disciplinary action pursuant to section 42 of the Act.
66. The de novo nature of the proceedings before the Tribunal provided the Applicants with an opportunity to address any issues that they considered should be taken into account.
67. In these circumstances I do not consider that the Respondent's conduct in taking disciplinary action against the Applicants amounts to 'special circumstances' for the purposes of section 60 of the Act.
68. Similarly, I do not consider that the manner in which the Respondent has conducted the proceedings amounts to 'special circumstances' for the purposes of section 60 of the Act.
69. I note the Applicants' contention that the Respondent failed to respond to an offer of settlement and that had the Respondent accepted the offer, the significant cost of running the proceedings would have been avoided. In my view, the Respondent was entitled to determine the manner in which it would respond to the application before the Tribunal. It was not under any obligation to accept the Applicants' offer.
70. In my view, the Respondent's failure to accept the offer does not amount to 'special circumstances' for the purposes of section 60 of the Act.
71. I am not satisfied that the factors relied upon by the Applicants, separately or in combination, constitute special circumstances warranting an award of costs.
72. It follows that I should decline to exercise the power to award costs in regard to the proceedings before the Tribunal.
Whilst it is understandable that the applicant sees the conduct of the proceedings as contravening section 60 (1) (a) (conduct to disadvantage), (b) (prolonging the time to complete) and (f) (failed to comply with a section 36 duty), I do not believe that any such failure is of sufficient gravity to constitute special circumstances. Any argument concerning section 60 (1) (b) - post commencement of the hearing, could be arguably equally attributed to both parties.
In addition as the matter has ultimately settled, in my view the grounds for special circumstances are further diminished on the basis of the submissions of the respondent on this point, and the reasons set out above.
I find that special circumstances have not been established. On this basis the application will be refused.
[7]
Conclusion
I make the following order:
1. The application for costs is refused.
[8]
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
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Decision last updated: 17 November 2017