Raethel v Director-General, Department of Education and Training

DELIVERED EX TEMPORE 1 I will give the appeal panel's ruling on the costs application by Mr Simpson, the respondent to the appeal due to be heard in this matter today. 2 The appeal made by the agency which was the respondent to the original application for review was withdrawn by the agency, as we understand it, at about 9am this morning. The appeal was due to be heard at about 2pm. The only point of the appeal related to the interpretation by the Tribunal below of s 59(a)of the Freedom of Information Act 1989 (the Act). 3 The appeal panel is of the view that the point raised was quite a narrow point. The application for costs by the respondent to the appeal (who was the applicant in the original proceedings, Mr Simpson) has been essentially to recover his out-of-pocket expenses in respect of: the filing of the application for review; and the expenses associated with the appeal. 4 We note in that regard that there was no costs application made by Mr Simpson before the original Tribunal. 5 The position in relation to costs in the Tribunal is governed by s 88 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act). Section 88 basically stands for the proposition that parties should, unless there is some other provision, bear their own costs. The exception to that, as expressed in s 88(1) of the Tribunal Act, is that the Tribunal 'may award costs only if it is satisfied that there are special circumstances warranting an award of costs.' 6 The following is reasonably clear, i.e. that the mere fact that someone has succeeded in proceedings is not enough in itself to amount to a special circumstance, otherwise we would be back in the position of applying the rule of costs following the event (the ordinary rule in litigation) which clearly this Act and legislative scheme was intended to oust in the proceedings of this Tribunal. (In that regard I should acknowledge that there is an exception that applies to professional discipline proceedings in the Tribunal.) 7 The application is made by an unrepresented party and I explained in the course of submissions to Mr Simpson, the position is (as is reflected in the decision of Raethel v Director-General, Department of Education and Training [2000] NSWADT 56) that the purpose of the award of costs is to assist parties in respect of the engagement of legal representation. There is clear authority that costs orders cannot be made in favour of unrepresented applicants in respect of (what might be described as) the inconvenience and loss of income associated with their attendance at proceedings to represent themselves: Cachia v Hanes (1994) 179 CLR 403. [Now see also, Atlas v Kalyk [2001] NSWCA 10.] As I understand the position, Mr Simpson did not press any claims in those categories. 8 However, he did press claims in respect of expenses associated with the proceedings, and whilst we have not had the opportunity today to look at any authority on that question our view is the same as that expressed by counsel for the agency, Mr Singleton. That is that it would be a proper exercise of the costs' discretion in respect of an unrepresented applicant to compensate the applicant in regard to out-of-pocket expenses of the kind that Mr Simpson described which include, for example, photocopying and postage and obtaining of professional typing services. 9 For Mr Simpson to succeed he needs to show that there are 'special circumstances in this case warranting an order for costs.' Mr Simpson referred to several factors which he felt warranted an order for costs. 10 I will deal briefly with those factors. 11 We acknowledge that his proceedings seeking access to the document which has been released to him today, have gone on over some time. No doubt that is a source of great dissatisfaction to Mr Simpson. We are disinclined in respect of applications of this kind to explore the history of an application for review of a decision prior to the time of its lodgment in the Tribunal, unless there is substantial material placed before us which might plainly demonstrate for example that the decision put in issue by the application was wholly unmeritorious - and that was known to be so or should have reasonably been understood to be so by the Department prior to the making of the application. Or that there was some other defect of a similar magnitude. 12 But there is insufficient material I think before us today to really form any view as to the general history of the application. 13 We simply note that there appear to have been a number of requests filed by Mr Simpson over the years and the request that is in issue today, as we understand it, is not the original request in that sequence of requests. We acknowledge that Mr Simpson has also had a favourable decision from the Ombudsman. 14 On the other hand, the scheme of the legislation does acknowledge the possibility that agencies may take decisions which are negative to FOI applicants and that in the ordinary course this is the forum where those decisions will be tested. 15 The appeal panel expressed reservations, as Mr Singleton pointed out, in Raethel in relation to the question of the Tribunal getting involved, with its limited resources, in the pre-history of applications that are filed in the Tribunal. 16 I do not want to go so far today as to suggest that we might never do that, but it is a step of some gravity to take; and in my view the material is not before us today to justify exploring the history of this matter prior to it reaching the Tribunal. 17 There is the issue of the appeal being withdrawn at a very late time and we agree with the submission of Mr Singleton that had this been a circumstance in which Mr Simpson had engaged legal representation for the day, I think there would be no doubt that Mr Simpson would have a strong case to make an application to be reimbursed in respect of the expenses associated with engaging legal representation in circumstances where an appeal had been withdrawn so late. On the other hand, it is in the interests of the resolution of disputes that there be concessions made in proceedings and that government parties in particular avoid the demands associated with a full appeal hearing (both for the Tribunal and for the opposite party) by making decisions not to proceed even if those decisions are sometimes made at a very late stage. 18 We are not inclined to give the factor of late withdrawal of the appeal great weight on this occasion. But we acknowledge that it is a factor that was reasonably referred to; and might in some circumstances amount to a special circumstance entitling the other party to an award of costs. 19 The point that most troubled us in respect of the question of whether or not to treat this as a case where special circumstances were made out, goes to the question of the strength of the point made in the notice of appeal to do with s 59(a) of the Freedom of Information Act 1989. 20 In general we think it would not be desirable to encourage in the context of a costs application scrutiny of the contents of notices of appeal in a Tribunal which is founded on principles of access and informality. It is already a common experience in the Tribunal for disappointed, unrepresented parties to file appeals which, on their face, make no point of substance. I would be concerned to see encouraged any culture in the Tribunal which might lead respondents in those circumstances to take advantage of the futility of the grounds of the appeal as a special circumstance warranting an order for costs. But we make those points in respect of unrepresented parties. 21 Arguably, and possibly appropriately, a different point can be made in relation to represented appellants; and in particular government departments who bring appeals. In those instances, one should reasonably expect a higher standard to be observed in the preparation of appeals; and for points of substance and real arguability to be the basis upon which the appeal processes of the Tribunal are activated. 22 On this occasion we have had some concern as a panel as to the meritoriousness of the ground of appeal at the level of it being arguable. We have also had concern as to whether even if the ground had been established, whether it would have led to any interference with the decision below. 23 But after some deliberation we have concluded that on this occasion, at least, we should not form any concluded view to the effect that the ground was so unmeritorious as to amount to a special circumstance justifying an order for costs against the agency. 24 But it can be taken from the observations that we have made that there may be an occasion in the future where at least in the case of government appellants or represented appellants we may see it as appropriate to intervene in respect of what might be called an empty appeal by way of a 'special circumstance' costs order. 25 In conclusion, the decision of the appeal panel is to refuse the application made by Mr Simpson. I think on this occasion the position is not one where the ordinary rule that each party bears their own costs in proceedings should be disturbed. But the case has given us some concern, and we acknowledge the care and detail that Mr Simpson has put into his submissions today on this point. 26 I think I should say by way of conclusion, the amount which Mr Simpson sought we calculated as ultimately being approximately $70. We did not consider it appropriate to include in our consideration the original fee in respect of the application for review. We did not take into account at least one of the amounts incurred in respect of postage as it belongs to the period prior to the lodgment of the notice of appeal. 27 They are our reasons in respect of the matter. 28 The respondent's costs application is refused.