Roberts v Commissioner of Police, NSW Police Force

The applicant's submissions

1. The applicant submits that the nature of the proceedings were of significant importance to the applicant and complex and that the respondent conducted the proceedings in a way that unnecessarily disadvantaged him. He submits that on two occasions the respondent did not meet timetables set by the Tribunal for the filing of material in preparation for hearing, contrary to the respondent's obligations as a model litigant. The applicant states that delays on the part of the respondent led to him incurring further costs, including the cost of dealing with the delay, such as considering correspondence, taking instructions and responding as required.
2. The applicant is concerned that information the subject of the applications was released to him in a piecemeal fashion during the proceedings. He is particularly concerned that one document, exhibit R8 in the original proceedings, was only released to him after the lunch break on the second day of the hearing. He states that the late release of the information disadvantaged him as he was not able to cross-examine any witness in respect of this information. He states that, had the document been released earlier, much of the cross-examination at the hearing of the respondent's witnesses would have concerned this document.
3. The applicant states that Exhibit R8 should have been released well in advance of the last afternoon of the hearing. He states that, but for the GIPA proceedings, the respondent would not have disclosed to him the further documents which were released during the hearing. He submits that the proceedings were therefore justified and special circumstances exist to warrant an award of costs.

Respondent's submissions

1. The respondent submits that it did not engage in conduct that unnecessarily prolonged the proceedings or disadvantaged the applicant or that any other special circumstances exist which would warrant an award of costs to the applicant.
2. The respondent acknowledges that there was some delay on its part but states these were the result of the consolidation of the two GIPA applications, the large amount of material involved and the need to notify three other agencies that information about their functions was within the scope of the GIPA applications. The respondent also submits that any delay did not prejudice the applicant's preparation of his case, as, as is usual in GIPA cases, the respondent was required to file its material first.
3. The respondent submits that release of information during the course of GIPA proceedings is not unusual and the making of proper concessions is entirely in accordance with model litigant principles as such concessions can only serve to reduce the overall cost of the proceedings.
4. In relation to Exhibit R8, the respondent states that the document was released as it no longer sought to maintain that clauses 1(f) and (h) of the Table to s 14 of the GIPA Act applied to the information. The information was released with redactions as the respondent continued to maintain that it contained information that was subject to legal professional privilege and also contained excluded information. The respondent submits that release of the document could in no way be said to be prejudicial to the applicant and notes the applicant has not explained how release of the information at an earlier stage would have changed the way he conducted his case.
5. The respondent also notes that the proceedings were in fact scheduled for further hearing which was vacated by consent some two months later. The applicant did not seek to recall any witnesses for further cross-examination at any time, even though he had an opportunity to do so.
6. The respondent also raises a number of issues with the way the applicant conducted the proceedings which it submits militates against an award of costs in its favour. In summary, these are that the applicant raised an issue concerning the adequacy of searches two weeks before the hearing, ran a legal argument about legal professional privilege that was without foundation and cross-examined the respondent's witnesses on irrelevant matters. The respondent states that these maters unnecessarily prolonged the hearing and demonstrated that the applicant fundamentally misconceived the nature of administrative review proceedings under the GIPA Act.

Consideration

1. The applicant has had a long running dispute with various agencies, in particular the NSW Police, with regards to what he believes was a malicious prosecution against him. The applications under the GIPA Act which were the subject of these proceedings were brought in an attempt to obtain information which he believes is relevant to his case. He was, of course, perfectly entitled to make such applications and to put forward his arguments about release of the information.
2. As is often noted, an applicant in GIPA matters is often at a disadvantage as the contents of the information sought to be withheld is not known to them. The conduct of their case can therefore be difficult. In this matter, it appeared that the applicant's approach was coloured by his view of the police and other agencies who had taken action against him. To a certain extent, I agree with the respondent's submission that the applicant misconceived the nature of the GIPA proceedings. There was a tendency to dispute the content and nature of the information itself rather than whether the information should be released in accordance with the GIPA Act.
3. There does appear to have been some delay by the respondent in complying with timetables set by the Tribunal. However, I do accept that there was a large amount of material involved and a need to involve other agencies in decisions about whether information could be released. As the applicant himself has stated, the proceedings were complex. The applicant has not been able to particularise how his costs were increased by any delay on the respondent's part. The respondent sought extensions of time for the filing of material and these were granted by the Tribunal. The applicant was not required to respond until the respondent had filed its material and it is therefore difficult to understand how he was disadvantaged.
4. It is true that some information was released to the applicant during the course of the proceedings. The remainder of the information sought, however, was not released as I found the respondent had made out its case in various respects. While, of course, it would be preferable if information which is capable of being released is provided to an applicant at an early stage, the applicant has been unable to point to any prejudice he suffered by release of the information. It is not unusual for further information to be released during the course of the Tribunal proceedings as the evidence is presented.
5. It is not clear to me why the applicant states that late release of information after the conclusion of the respondent's evidence meant he was prejudiced because he could not cross-examine witnesses on the information so released. I do not understand what would be the purpose of such cross-examination in GIPA proceedings. Such an approach does support the view that the applicant misconceives the nature of the GIPA proceedings.
6. While I can understand that the applicant would have preferred information that was released to him had been released earlier in the proceedings, I am not satisfied that in this matter the applicant was disadvantage or suffered any prejudice by any conduct on the part of the respondent. I am therefore not satisfied there are any special circumstances which would warrant an order for costs in the applicant's favour. The primary rule that each party to proceedings in the Tribunal is to pay the party's own costs, should apply.

Order 1. The application by the applicant for costs is 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: 09 October 2018