On 14 February 2024, the Tribunal published a decision (the published decision) in relation to the administrative review of the respondent's decision made under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act). The Tribunal affirmed the respondent's decision: Sethi v Department of Communities & Justice [2024] NSWCATAD 35.
Subsequent to publication of that decision, the respondent sought a correction to the coversheet to indicate that Mr Austin, who appeared for the respondent at the hearing, was not a solicitor. The coversheet was subsequently amended under s 63 of the NCAT Act.
On 12 March 2024, the applicant sent an email to the Tribunal, in which he sought "corrections" to the published decision, as follows:
1. Deletion of order 1 of the coversheet, on the basis that:
This item i.e., paragraph 1 on the coversheet as highlighted should be removed from the decision as it is not related to the core subject of the matter.
In addition, the original request made to the Tribunal was to have the matter reallocated to a different Tribunal member due to the illegal act, misconduct and misbehavior (sic) by the Tribunal Member, rather a recusal or disqualification of the presiding member MA Riordan on the ground of apprehended bias.
1. Removal of paras [20] to [28], on the basis that:
… it is not related to the core subject of the matter rather just an excerpt of the transcript of the hearing. It also reveals a number of aspects of another confidential matter which Applicant has in the Tribunal. In that matter, the applicant's identity has been anonymised and these paragraphs compromising the anonymisation and confidentiality in that matter. Further, the misconduct and misbehavior (sic) by the Tribunal member has been to the Tribunal by the Applicant at previous instance.
1. Removal of paras [66] to [68] and the first line of para [69], on the basis that:
…It does not relate to the core subject of the matter or reasons for the core decision but merely an excerpt of the Transcript (sic) of the hearing. As outlined in the comment above, it clearly demonstrates the misconduct and misbehavior (sic) by the Tribunal Member which has been reported to the Tribunal by the Applicant.
1. Sentences from para [103] should be removed on the basis that:
…it not related to the core subject of the matter rather just another excerpt from the transcript of the hearing. It also clearly appears to be added in retaliation by the Tribunal member because Applicant called out the illegal act, misconduct and misbehavior (sic) of the Tribunal Member.
1. Parts of paras [174] to [186] should be removed on the basis that:
… it is not related to the core subject of the matter and will also align with the removal of the paragraph 1 of the coversheet as requested in this amendment. As per the comments provided in the paragraph 1 of the coversheet, the original request made to the Tribunal was to have the matter reallocated to a different Tribunal member due to the reasons highlighted, rather a recusal or disqualification of the presiding member MA Riordan on the ground of apprehended bias.
On 12 March 2024, the respondent filed an Application for Costs under s 60 of the NCAT Act.
On 13 March 2024, the Registrar wrote to the applicant in the following terms:
I refer to the email of the Applicant dated 12 March 2024 requesting amendment to the decision published on 14 February 2024 in the above case file number.
Pursuant to section 63 of the Civil and Administrative Tribunal Act the Tribunal has power to correct errors in decisions of the Tribunal. Section 63 states:
(1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member.
(2) If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal's decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct.
(3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where -
(a) there is an obvious clerical or typographical error in the text of the notice or statement, or
(b) there is an error arising from an accidental slip or omission, or
(c) there is a defect of form, or
(d) there is an inconsistency between the stated decision and the stated reasons, or
(e) there is an inconsistency between the name of a person stated in the text of the notice or statement and the name stated on the person's birth certificate or other form of identification.
Based on what you have provided it appears you are seeking to have the Members reasons deleted. If you are unhappy with a decision or reasons provided you may wish to consider your appeal rights.
The applicant responded to the Registry by way of a letter that he emailed on 14 March 2024, as follows:
I refer to the Generic Correspondence received from you yesterday i.e., 13 March 2024 w.r.t. my request of amendment to the decision published on 14 February 2024, as amended on 11 March 2024 (on Respondent's request) in the above matter. On 11 March 2024, Tribunal's AEOD division sent a notification to the parties that an amendment to the decision has been made which was requested by the Respondent. On 12 March 2024, I've applied for a further request of amendment of the same decision with NCAT AEOD Registrar/Registry.
In your correspondence of 13 March 2024 in response, you provided a reference to s63 of the Civil and Administrative Tribunal Act and advised that 'based on what I have provided it appears I am seeking to have the Members reasons deleted. And that I may wish to consider my appeal rights.
Please note I am not seeking to have the Members reasons deleted but I am seeking to have those reasons and sections which pertains to the reallocation/recusal application removed from the published decision. The order, the decision and its reasons will stand and if required Tribunal can provide the reasons for the reallocation/recusal application i.e., for Order 1 in a separate document to the parties separately.
Please note in the hearing, it was discussed with the presiding Tribunal Member M Riordan that any decision and reasons for reallocation/recusal application be provided separately to the parties. Given that reallocation/recusal application was based on the basis of the misconduct (which has been highlighted as an illegal act and misfeasance in public office) of the Tribunal Member in the Applicant's other AEOD matter which is Confidential and where Applicant's identity has also been anonymised.
Hence it was understood that any reasons for that reallocation/recusal application if published, will clearly compromise the confidentiality of the other AEOD matter and Applicant's anonymised identity.
There was no objection to that aspect from the Respondent's representatives to that request of the Applicant.
Hence it is my i.e., the Applicant's preliminary view that, unless in bad faith, Tribunal Member M Riordan has added the order for reallocation/recusal and reasons for it in the same document of reasons erroneously, hence s63 applies. Further it has also been observed that some disparaging and defamatory comments have been added in some of the sections of the reasons, highlighted for removal, which are unacceptable and excerpts of transcripts were provided which are not required as those are also compromising the confidentiality of the Applicant's other AEOD matter.
In addition, these sections are not dealing with the core subject of the matter anyway and having these removed from the published decision will have no impact on the actual decision for the core subject matter regardless. Even though it is not required, but the removed sections can be sent just to the parties in a separate decision document for reallocation/recusal application.
Please note that an appeal for the matter has already been filed with the NCAT's Appeals Division with a matter number 2024/00095850 to appeal the decision on the core subject of the matter. And I would like to use the amended Decision with the highlighted sections removed from the decision for Appeal Panel and callover presiding Member's consideration of the decision under appeal. Given the NCAT Appeals division have separate Members so I understand the matter will be allocated to separate Tribunal Members.
Further as it may appear that those sections are added by the Tribunal Member deliberately and in bad faith then this request for removal of those sections for Order 1 is also consistent with s53(4) of the act as an alternative to the appeal also consistent with s13(b) of the NCAT Guideline 1 Internal Appeals. As it was also noted that the conduct and behaviour of the Tribunal member was questionable and demeaning throughout the conduct of the hearing.
Hence please can you process the amendment request of the decision issued 14 February 2024, as amended on 11 March 2024 and have those highlighted sections removed as per Tribunal's usual process or as per Registrar's delegation powers or by first sending it to the Member and then to the President of the Tribunal if required or to both of them simultaneously.
I've requested the Tribunal's Appeals division that the Call-Over for the appeal should be kept on hold up until the amendment request of the decision below gets dealt with by the Tribunal's AEOD division, such that in the initial Call-Over parties and the presiding Appeal Panel member will have the amended copy of the decision i.e., the copy of the decision without the highlighted sections for reasons for reallocation/recusal application and having any demeaning or disparaging statements.
Please can the above request be taken into account and actioned promptly.
The Tribunal made the following directions in relation to the costs application:
1. The applicant is to file and serve written submissions in respect of the application for costs within 14 days; and
2. The respondent is to file and serve any written submissions in reply within a further 7 days.
The applicant then filed an Appeal against the published decision and on 15 March 2024, the respondent made an application to have the costs application stayed pending determination of the appeal.
On 26 March 2024, Principal Member Simon issued a decision in relation to the stay application and stated, relevantly:
4. On 21 March 2024 the Tribunal made directions seeking the views of the parties in relation to the application for a stay of determination of the application for costs and whether a hearing could be dispended with in relation to that stay application.
5. On 19 March 2024, the applicant provided submissions in relation to the stay application and on 25 March 2024, the respondent provided submissions in relation to the stay application. I have considered those submissions in coming to my decision in relation to the application for a stay.
6. Section 50(1)(c) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) provides that a hearing is required for proceedings in the Tribunal, except if the Tribunal makes an order under the section dispensing with a hearing. The Tribunal may make an order dispensing with a hearing if the Tribunal is satisfied pursuant to s 50(2) of the NCAT Act that:
…the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.
7. The Tribunal may not dispense with a hearing unless the Tribunal has afforded the parties an opportunity to make submissions about dispensing with the hearing and has taken any submissions into account (NCAT Act, s 50(3)).
8. The directions of the Tribunal made on 21 March 2024 provided the parties with an opportunity to make submissions on whether a hearing can be dispensed with in relation to the application for a stay. The respondent submits that a hearing should be dispensed with and the applicant has not made submissions in that regard.
9. Having considered the parties' submissions, I am satisfied that the application for a stay can be determined without a hearing by considering the submissions provided to the Tribunal (NCAT Act, 2 50(2)). A hearing would cause the parties to incur further unnecessary costs. Accordingly, I have made an order under s 50(1)(c) of the NCAT Act dispensing with a hearing in relation to the application for a stay.
10. Having considered the submissions of the parties, I refuse to grant a stay of the application pending the outcome of the appeal.
11. The respondent submits that because the applicant has field appeal proceedings in this matter, the respondent's costs application be stayed until finalisation of the appeal proceedings. The respondent submits that their position on the costs application may change based on the outcome of the appeal. That is, the respondent may no longer press its application for costs if it is unsuccessful in the appeal proceedings or amend its application if it is successful.
12. I am not satisfied that the just, quick and cheap resolution of the issues would be best served by staying the respondent's application for costs until the appeal proceedings are finalised. A finalisation of the costs application may allow further appeal in relation to the costs decision to be dealt with as part of the current appeal. Moreover, the costs of the appeal itself will be a separate issue for the appeal panel to determine.
13. A review of the current directions for the exchange of documents in relation to the costs application indicates that the parties have not been given an opportunity whether a hearing in relation to costs can be dispensed with. Accordingly, I have made a further direction requiring the parties to address whether a hearing can be dispensed with as part of their written submissions. That issue will be decided in due course, otherwise directions 1 and 2 of the directions made on 19 March 2024 remain on foot.
[2]
Hearing dispensed with
I note that neither party filed any submissions in relation to the issue of whether a hearing of the costs application could be dispensed with.
I am satisfied that the parties have been given an opportunity to make submissions on this issue and that in the absence of any such submissions, it is appropriate to dispense with a hearing on the basis that it can be determined based on the written submissions filed by the parties.
[3]
Application for Costs
I note that the respondent applied for an order that the applicant pay costs of the proceedings in the amount of $7,304.44, comprising legal costs of $7,285.74 (incl GST) and $18.70 for disbursements (incl GST).
The respondent made the following submissions in support of the costs application:
B. Applicable law
4. The general rule is that parties to proceedings in the Tribunal pay their own costs: CAT Act section 60(1).
5. However, the Tribunal may award costs in relation to proceedings before it if it is satisfied that there are special circumstances warranting an award of costs: CAT Act, Section 60(2).
6. In determining whether there are special circumstances warranting an award for 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.
7. The Tribunal has stated that special circumstances are 'circumstances that are out of the ordinary, but need not be those which are exceptional or extraordinary': ENN v Commissioner of Police (No 2) [2020] NSWCATAD 145, at [11].
8. The respondent submits, as set out in part D of these submissions, that there are special circumstances that warrant an award for costs having regard to sections 60(3)(c), (e) and (f). this is because the circumstances of this case are out of the ordinary, as detailed in part D below.
9. "Costs" includes:
(a) the costs of, or incidental to, proceedings in the Tribunal, and
(b) the costs of, or incidental to the application or appeal: see CAT Act, section 60(5).
10. According to the NSW Civil and Administrative Tribunal Administrative and Equal Opportunity Division Guideline August 2017 (Costs Guideline), a party can seek the following costs:
(a) the fees charged by the lawyer for preparing and running their case.
(b) the out-of-pocket expenses (disbursements) of the lawyer; and/or
(c) the out-of-pocket expenses of a self-represented party.
11. The respondent seeks costs itemised in Annexure A of this application, which includes the costs of the respondent's in-house lawyer providing legal advice on, and preparing for, the case, and the respondent's out-of-pocket disbursements.
C. Legal costs and disbursements
12. The Costs Guideline states that a party may ask for the fees charged by the layer for preparing and running case, and disbursements.
13. During the course of these proceedings, Katrina Lee, a principal lawyer of the Department of Communities and Justice (the Department), reviewed and provided legal advice on the documents filed by the parties in the proceedings. Ms Lee, in her capacity as a principal lawyer of the Department:
(a) is a lawyer employed by the respondent,
(b) holds a current Australian Practising Certificate,
(c) works in the respondent's legal branch where her duties and responsibilities include providing legal advice, advocacy work and supervision,
(d) had the day-to-day supervision of the Open Government Information and Privacy Advisor, Mr Jake Austin (OGIP Advisor), who acted as the advocate in these proceedings,
(e) attended the case conference and hearing, and reviewed the submissions and evidence filed in the proceedings for the purposes of providing legal advice to the OGIP Advisor. This included significant time spent on providing legal advice on the respondent's prospects of success and on the submissions and evidence of the parties.
14. Practitioners employed by the Crown, or a statutory authority or a corporation are entitled to have their work assessed on the same basis as that of independent solicitors exercising their comparable skills in the performance of comparable work. It is not the manner in which the practitioner carries on his or her profession which counts, it is the nature of the work, the time spent, and the skill, care and responsibility involved: Commonwealth Bank of Australia v Hattersley [2001] NSWSC 60 at [21] (Hattersley).
15. In the respondent's view, it was appropriate that a principal solicitor be instructed to advise in this matter and have the day-to-day supervision of the OGIP Advisor. The respondent submits that this approach was orthodox and cost-effective as it significantly reduced the costs incurred by the respondent. The rates charged by the respondent are more than reasonable, being significantly less than market rates. Further, the costs sought do not include the time spent by the OGIP Advisor in hearing preparations, including preparing evidence. The respondent further minimised its costs by not engaging Counsel and by involving another Open Government Information and Privacy Advisor (Clerk 7/8) to assist Ms Lee and the OGIP Advisor in preparing for the hearing of these proceedings.
16. The respondent is entitled to charge out a solicitor at the rate of $346.94 per hour with a daily maximum of $3,469.40, including GST pursuant to the Attorney General's rate for Legal Representation (as at 1 August 2022): see https://dcj.nsw.gov.au/legal-and-justice/strategies-and-plans/information-for-government-lawyers/attorney-generals-rates-legal-representation.html. The rates include all overheads, secretarial, legal and administrative assistance, but not out-of-pocket disbursements.
17. The respondent also seeks disbursements in the amount of $18.70 including GST for the printing of the following documents at 10 cents per page:
* Documents filed 24 October 2023: 46 pages
* Documents filed 28 November 2023: 111 pages
* Documents filed 19 January 2024: 30 pages
Total $18.70
18. The total sum of the legal costs and disbursements sought by the respondent is $7,304.44 including GST (Annexure A).
D. Special circumstances warranting an award of costs
No Tenable basis in fact or law
19. I submit that the Tribunal should exercise its discretion under section 60(1) of the CAT Act to award costs to the respondent because there are special circumstances to warrant that award.
20. In the respondent's view, the applicant had no prospects of success as their case was so without foundation as to be hopeless. The applicant made claims that had no tenable basis in fact or law (section 60(3)(c)) and was weak in comparison to the respondent's case.
21. The interpretation of section 60(3)(c) was considered by an Appeal Panel in DYH V Public Guardian (No 3) [2022] NSWCATAP 34. At [20]-[22] the Appeal Panel stated:
20. The Victorian case law considering an equivalent provision to s 60(3)(c) of the NCAT Act provides some helpful analysis. The Victorian Civil and Administrative Tribunal may also award costs if fair to do so having regard to "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" (Victorian Civil and Administrative Tribunal Act 1998 (Vic) ("VCAT Act"), s 103(3)(c)). The meaning and operation of s 103(3)(c) of the VCAT Act were considered by Senior Member Byard in Dennis Family Corporation Pty Ltd v Casey CC (Red Dot) [2008] VCAT 691. He said at [14]-[15]:
The relative strengths of the claims appear to refer to the strength of claims of one party compared to the strength of the claims of another. A difficult, doubtful or test case might be necessary to clarify the legal position of the parties. It is probably seldom that an order for costs would be made having regard to this consideration alone where there was a real issue to be tried and real justification for the claims made on either side. I take it that it is generally where there is a very weak case for one side, or none at all, that this consideration is likely to lead to an order for costs. I note that the wording says that the absence of a "tenable basis in law or fact" is a consideration included within the consideration of the relative strengths of the claims of the parties.
This certainly cannot mean that an unsuccessful party should be required to pay costs because, at the end of the case, that party's claims have been found to be untenable in fact or law to the extent that they were not upheld and were not successful. That would amount to "costs following the event". It would compromise the general rule created in s 109(1).
21. The Senior Member also commented (at [19]) that "'untenable' in the context of s 109(3)(c) means something like so weak as to be unarguable, rather than merely weak."
22. In our view, the Senior Member's observations apply with equal force to s 60(3)(c) of the NCAT Act. The appellants' position was not so weak as to be unarguable and we do not consider it to have lacked a tenable basis in fact or law.
22. Throughout the proceedings, the respondent maintained its position that the government information sought by the applicant was not held by the respondent. The respondent put on submissions, further submissions, and affidavit evidence in support of its contention. The applicant did not put forward any compelling arguments that the government information existed but merely asserted that it did: see, for example, judgment at [95]-[103].
23. The applicant, in fact, appeared to concede that the records sought did not in fact exist. For example:
(a) The applicant's original request for access to government information (GIPA request) appeared to concede that a record might not exist. The applicant stated that 'if schedule requested in the applicant's application does not currently exists (sic), the Department can create and collate such a record.
(b) The applicant contradicted himself at times. At the hearing, the applicant stated that he was seeking the underlying information from court documents. This contradicts his GIPA request which the applicant stated was 'not an application to access court documents' but rather, 'an application to request the schedule of the matters with the outlined parameters': see tab D of the respondent's tender bundle (filed on 27 November 2023).
(c) The applicant conceded at paragraphs [49], [54], [56] and [71] of his affidavit (filed on 21 December 2023) that for the respondent to provide access, it would need to create a new record. The applicant confirmed this at the hearing, when he stated '…it being accepted that it is held, and creating a record or document or a schedule or whatever you can call it, I am asking that it can be created and provided to me': see the judgment at [126]. When the Tribunal asked the applicant whether he believes that an agency has an obligation under the GIPA Act to create a fresh record, he replied 'Yes they may create': see the judgment at [112].
(d) When the Tribunal asked the applicant if there is an obligation to create a record, the applicant replied '[w]hat do toy mean by a record, everything is a record. Mr D'Aeth's affidavit has become a record. I am asking them to create it. I have been kept in the dark that they were doing it up until 28 July no searches were conducted, as he said in cross-examination': see the judgment at [113].
(e) The applicant asserted that in order to comply with the obligation under section 53(3) of the GIPA Act, the respondent must create a new record under section 75. He then said, 'Well they can provide me with information in another format'. However, section 75 of the GIPA Act does not give rise to any obligation to create a record. See Brown v Wingecarribee Shire Council (No 2) [2020] NSWCATAD 225, at [25], where the Tribunal determined that a claim was directly contrary to the text of the GIPA Act and the Tribunal's past decisions on substantively similar issues had 'no tenable basis'.
(f) While the applicant appeared to concede the records were not held by the respondent, he nonetheless pressed the matter to a hearing for five hours to raise various other irrelevant matters such as misconduct by the agency and matters relating to the Public Interest Disclosure Act: see the judgment at, for example, [121]-[122].
24. The applicant raised no real issues to be considered by the Tribunal. It follows there was substantial disparity between the strength of the respondent's submissions and the weakness of the applicant's submissions (as made in his affidavit). By contrast, the respondent filed substantial submissions and evidence to demonstrate that it did not hold the records sought, including expert evidence from Mr Christopher D'Aeth, who, in his capacity as Principal Registrar and Executive Director is the most senior administrative officer of the Supreme Court of New South Wales registry.
25. It follows, in my submissions, that the applicant's case was so weak that they had no tenable basis in fact or law.
Proceedings were frivolous, vexatious, misconceived and lacking in substance
26. The question of 'whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance' is a matter to which the Tribunal may have regard when determining whether there are special circumstances which warrant an award of costs (CAT Act, Section 60(3)(e)).
27. An application is 'lacking in substance' if the application is not reasonably arguable.
28. The words 'frivolous' and 'vexatious', used together, may signify that the application lacks a legal foundation or that it is 'not legally properly based': Fox v Commissioner of Police, New South Wales Police Force [2016] NSWCATAD 77 at [26], [28]. The term 'vexatious' 'can include proceedings brought with the intention or annoying or embarrassing or harassing the other party, or for some collateral purpose other than having the court or tribunal adjudicate on the issues raised by the proceedings, or, irrespective of the motive of the litigant, if the proceedings are so obviously untenable or manifestly groundless as to be utterly hopeless': Re Filsell and Comcare [2009] AATA 90 at [33], Fox at [28].
29. Notably in Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAD 95, the Tribunal found , at [62], that:
[t]o attempt to use proceedings under the GIPA Act to review the conduct of government agencies and their officers or staff, amounts to the use of those proceedings for a collateral purpose. Attempts to use review proceedings in the Tribunal for a collateral purpose are to be rejected: Crewdson v Central Sydney AHS [2020] NSWCA 345; GA v The University of Sydney [2009] NSWADT 230.
30. A litigant's history of previous vexatious litigation may be 'logically relevant' to the issue of determining the present purpose for which the applicant has brought the proceedings, and thus, whether current proceedings are 'vexatious': Minister for Education and Early Childhood Learning v Zonnevylle [2020] NSWCA 232, [52] (Zonnevylle), citing Conomy v Maden [2019] HCATrans 49.
31. I submit that the proceedings were misconceived and lacking in substance as the proceedings:
(a) lacked legal foundation for the reasons set out in paragraphs [22]-[24] above and the grounds put forward by the applicant in his submissions were not reasonably arguable. For example, the applicant claimed that the respondent had a legal obligation under the Public Interest Disclosure Act 2022 to disclose information, which is misconceived: see the judgment at [118], [121],
(b) were brought for the purposes of 'exposing' misconduct despite the Tribunal advising the applicant that it was not conducting a hearing regarding alleged misconduct of either the respondent: see the judgment at [25], [115], [141], [175], [214], or of the Tribunal: see the judgment at [26]-[27],
(c) involved a disregard for the prospects for his case. The applicant asked the Tribunal to order the respondent to provide information within 15 days. When the Tribunal asked which provision of the GIPA Act requires the Tribunal to make such an order, the applicant replied 'there does not need to be a provision' as that is what he wanted: see the judgment at [140]. When the Tribunal asked the applicant to answer a question, the applicant replied 'I don't. I don't have to answer you. You have. To answer me. No, hang on. This is my, I am the member of the public. This is my application. You are you are. You are a public servant, right? And you have a duty assigned to help me. Assist me. Get this information from the agency'.
32. I further submit the proceedings were also vexatious as:
(a) the applicant spent a significant part of the hearing continuing to agitate his recusal application after it had been refused. It is well established that an attempt to re-litigate a matter that has already been determined may amount to an abuse of process: Walton v Gardiner (1993) 177 CLR 378 at 383; [1993] HCA 77; Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 193 [33]; [2009] HCA 27,
(b) the applicant, during the hearing, persistently alleged misconduct by the respondent and had to be reminded by the Tribunal several times that such contentions were not relevant to administrative review proceedings before the Tribunal,
(c) the proceedings appeared to be brought for collateral purposes in having the respondent conduct legal research on the applicant's behalf so that the information could be used in other proceedings: for example, see the judgment at [64]-[68],
(d) the applicant sought to cross-examine the respondent's witness Mr D'Aeth on matters that went beyond his affidavit evidence, and objections were met with an outburst from the applicant: see the judgment at [64]-[68],
(e) the applicant engaged in what the Tribunal described as 'outbursts' and 'interruptions' and did not properly answer questions from the Tribunal when asked: see the judgment at [22]-[24], [28], [66], [103], [132], [150],
(f) The applicant demonstrated similar conduct in prior proceedings (including other applications being dismissed as vexatious). This indicates habitual use of legal proceedings by the applicant with no regard for the merits of a claim, including a claim that the respondent did not make Ms Doreen Lin, the OGIP officer who determined the applicant's initial access application, available as a witness so as to 'hide misconduct'. See for example, Sethi v New South Wales Crime Commission [2024] NSWCATAD 21; Sethi v The Owners - Strata Plan No 93392; Sethi v Cho (No 5) [2024] NSWSC 1335; Sethi v Cho (No 4) [2023] NSWSC 1334; Sethi v Cho [2023] NSWCATAP 179,
(g) notwithstanding that Ms Lin was never called by the Tribunal to give evidence, the applicant's contentions on this issue and attempt to summons Ms Lin, for the ostensible purpose of inquiring into unfounded allegations of misconduct, suggest that the proceedings were brought for collateral purposes, and
(h) the applicant spent a significant part of the hearing making irrelevant submissions that had no connection to the real issues in dispute (e.g., allegations of misconduct against the respondent and the Tribunal member, claims that the respondent did not make a witness available to hide misconduct).
33. I submit that the respondent's attempt to use proceedings under the GIPA Act to review the conduct of government agencies and their officers or staff, amounts to the use of those proceedings for a collateral purpose. The Tribunal should reject any attempt to use review proceedings in the tribunal for a collateral purpose, as the applicant sought to do in these proceedings: Crewdson; GA.
34. I further note the Tribunal referred to the applicant's conduct at various points throughout the hearing as 'outbursts' and 'interruptions'. The applicant continuously sought to ventilate irrelevant matters throughout the hearing, including his application for the recusal of Senior Member Riordan. The applicant also failed to properly answer questions from the Tribunal when asked: see the judgment at [22]-[24], [28], [66], [103], [132], [150].
35. The respondent, by contrast, spent significant time and resources preparing submissions, the affidavit of Mr D'Aeth, a tender bundle and a summary of legal arguments so as to demonstrate that the records sought by the applicant did not exist. It appeared that the applicant wanted the respondent to conduct legal research on the applicant's behalf by creating a record so that the information could be used in his Supreme Court proceedings: see the judgment at [144].
36. I submit it is clear from the Judgment and the applicant's overall conduct in the proceedings that the proceedings were frivolous, vexatious, misconceived and lacking in substance.
The respondent also argued that the applicant failed to comply with the duty imposed upon him by s 36(3) of the NCAT Act, being a duty to co-operate with the Tribunal to give effect to the guiding principle in the NCAT Act.
The respondent argued that the applicant failed to comply with order 2 of the Tribunals' orders dated 20 October 2023, relating to the filing of his submissions and evidence. When the respondent sought the applicant's consent to vary the orders due to his non-compliance, the applicant suggested that the parties manage the timetable without the Tribunal's oversight.
The respondent argued that these proceedings should not have been complex as there were only three discrete issues in dispute: (1) whether it conducted reasonable searches; (2) whether the application that the applicant sought was held by it; and (3) whether the respondent was required to create a new record of information.
However, the applicant over-complicated the proceedings by: (1) spending a significant part of the hearing raising irrelevant matters; (2) continuing to re-agitate his recusal application after it had been refused; (3) making submissions, the vast majority of which were irrelevant to the real issues in dispute; (4) spending a significant amount of time cross-examining the respondent's witness on irrelevant matters and matters that went beyond his evidence; and (5) pressing various arguments that had no tenable basis in law (of which he was advised by the Tribunal). The hearing was also adjourned twice due to the applicant's general argumentative conduct toward the Tribunal: see the judgment at [26], [28], [66].
The respondent also argued that the applicant also failed to co-operate with the Tribunal so as to facilitate the just, quick and cheap resolution when he argued his recusal application and issued a summons to cross-examine Ms Lin the night before the hearing without its knowledge. He was asked by the tribunal to behave in a professional manner and was asked questions. Rather than responding to the Tribunal, the applicant advised the member 'I'll get back to you', 'I don't have to answer you', 'you keep disrupting', 'don't have to answer', 'Ms Riordan, can you stop speaking': see the judgment at [66].
The respondent concluded that these matters demonstrate that there are special circumstances within the meaning of ss 60(3)(c), (e) and (f) of the NCAT Act and it is appropriate and prudent that the Tribunal makes a costs order in its favour. This is to ensure that parties before the Tribunal are encouraged to meaningfully participate in proceedings and are deterred from engaging in conduct that results in the unnecessary wastage of costs without justification.
Otherwise, the respondent argued that the Tribunal should consider the objects of s 3 of the GIPA Act, in determining whether there are special circumstances warranting an award of costs. Notwithstanding the importance of the objects of the GIPA Act, it is difficult to conceive that bringing these proceedings constituted a legitimate assertion of the applicant's rights in circumstances where s 75(2) expressly states that the respondent has no obligation to undertake the task of creating a new record of information in order to respond to the GIPA request. Instead, he sought to invoke the Tribunal's powers to make an order that it would have no legal basis to make.
The applicant did not comply with the Tribunal's timetable for the filing of submissions in response to the application for costs and/or whether the matter can be determined on the papers. Accordingly, there is no response from the applicant.
[4]
Hearing dispensed with
Section 50(2) of the NCAT Act provides, "The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal."
I am satisfied that the issue for determination, which is whether there are special circumstances warranting an award of costs, pursuant to s 60 of the NCAT Act, can be adequately determined in the absence of the parties by considering the written submissions and material filed with the Tribunal.
Accordingly, I dispense with a hearing under s 50(2) of the NCAT Act.
[5]
Should the Tribunal exercise its discretion to award costs?
Section 60 of the NCAT Act provides:
(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 FCZ v Illawarra Shoalhaven Local Health District (No 2) [2024] NSWCATAP 53, the Appeal Panel referred to a prior decision of the Appeal Panel in Edwards v Commissioner for Fair trading, Department of Customer Service (Costs) [2019] NSWCATAP 249, at [9], as follows:
Special circumstances are circumstances that are out of the ordinary, but need not be those which are exceptional or extraordinary. These principles are well established and have been consistently applied in this Tribunal: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]; Commissioner for Fair Trading v Edward Lees Imports Pty Ltd (No 2) [2019] NSWCATAP 222 at [8]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32].
The Tribunal's discretion to award costs must be exercised judicially, and not arbitrarily, capriciously or so as to frustrate the legislative intent: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [22]. Further, a costs order is compensatory and not punitive: Dr Douglass v Lawton Pty Ltd (No 2) [2007] NSWCA 90 at [22].
The respondent relies on ss 60(3)(b), (c), (d), (e) and (f) and has also alluded to other factors that the Tribunal may consider relevant in relation to s 60(3)(g).
For the following reasons, I am satisfied that special circumstances exist in this matter that warrant an award for costs in favour of the respondent.
[6]
Section 60(3)(b) - whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings
The reasons for decision clearly indicate that the applicant spent significant time seeking to re-agitate his application for recusal (which he insisted was not a recusal application but rather an application for re-allocation), despite the fact that his application was refused. He also spent considerable time cross-examining Mr D'Aeth and sought to question him about matters that were irrelevant to the administrative review proceedings and matters that went beyond his evidence in the proceedings. He also made oral submissions on irrelevant matters.
In DYH v Public Guardian (No 3) [2022] NSWCATAP 34, the Appeal Panel stated, relevantly:
18. The general rule set out in s 60(1) of the NCAT Act, that each party pay the party's own costs, was "designed to promote access to justice generally and to minimise the overall level of costs in tribunal proceedings as far as is practicable" (Choi v University of Technology Sydney [2020] NSWCATAP 18 at [41], citing Stonnington City Council v Blue Emporium Pty Ltd [2004] VCAT 1441 at [13]). The concern with access to justice, evinced in s 60(1), indicates that the Tribunal should not award costs too readily on the basis that one party's claim was stronger than the other party's claim (see NCAT Act, s 60(3)(c)). The relative strengths of the parties' claims is one factor to be taken into account, but a finding that a party's claim is weak does not necessarily mean that there are special circumstances warranting an award of costs (see Choi v University of Technology Sydney [2020] NSWCATAP 18 at [45]).
19. In this context, we consider that the power to award costs is to be exercised with some tolerance for self-represented litigants who do not understand legal concepts. That includes a lack of understanding of the rules governing the admission of fresh evidence and the question of what constitutes error for the purposes of an appeal. That approach is consistent with the principle that the discretion to award costs is to be exercised judicially "having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs" (Feng v OzWood (Australia) Pty Ltd [2020] NSWCATAP 42 at [8]).
In this matter, the applicant was self-represented, but he informed the Tribunal that he is an experienced GIPA litigant and he clearly resisted all attempts made by the Tribunal to have him focus on relevant matters. Based on the applicant's self-professed experience in GIPA litigation, it cannot be said that he lacks an understanding of the legal concepts relevant to administrative review of a decision made under the GIPA Act.
It is also apparent from the reasons for decision that the applicant spent a considerable amount of time refusing to answer questions that were put to him by the Tribunal and engaging in behavioural outbursts, which required several short adjournments and the intervention of the Sheriff. He also failed to comply with the orders made for the filing and service of his evidence and submissions.
I am therefore satisfied that the applicant unreasonably prolonged the time taken to complete the proceedings and c 60(3)(c)(b) has been established
[7]
(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
The Appeal Panel considered s 60(3)(c) in DYH and stated, relevantly:
20. The Victorian case law considering an equivalent provision to s 60(3)(c) of the NCAT Act provides some helpful analysis. The Victorian Civil and Administrative Tribunal may also award costs if fair to do so having regard to "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" (Victorian Civil and Administrative Tribunal Act 1998 (Vic) ("VCAT Act"), s 103(3)(c)). The meaning and operation of s 103(3)(c) of the VCAT Act were considered by Senior Member Byard in Dennis Family Corporation Pty Ltd v Casey CC (Red Dot) [2008] VCAT 691. He said at [14]-[15]:
The relative strengths of the claims appear to refer to the strength of claims of one party compared to the strength of the claims of another. A difficult, doubtful or test case might be necessary to clarify the legal position of the parties. It is probably seldom that an order for costs would be made having regard to this consideration alone where there was a real issue to be tried and real justification for the claims made on either side. I take it that it is generally where there is a very weak case for one side, or none at all, that this consideration is likely to lead to an order for costs. I note that the wording says that the absence of a "tenable basis in law or fact" is a consideration included within the consideration of the relative strengths of the claims of the parties.
21. This certainly cannot mean that an unsuccessful party should be required to pay costs because, at the end of the case, that party's claims have been found to be untenable in fact or law to the extent that they were not upheld and were not successful. That would amount to "costs following the event". It would compromise the general rule created in s 109(1).
22. The Senior Member also commented (at [19]) that "'untenable' in the context of s 109(3)(c) means something like so weak as to be unarguable, rather than merely weak."
23. In our view, the Senior Member's observations apply with equal force to s 60(3)(c) of the NCAT Act…
The relevant question is therefore whether the applicant's case was so weak as to be unarguable, rather than merely weak.
I am satisfied that the claims made by the respondent, namely that the information sought in the GIPA request was supported by expert evidence, whereas the applicant's affidavit comprised his submissions and beliefs in relation to a number of matters of which only some were relevant to the issues in dispute in the administrative review. An example of this was his assertion that the respondent had a legal obligation to provide him with the disputed information under the Public Interest Disclosure Act. That particular submission was legally untenable.
While the applicant did not file any evidence that provided a sound basis for disregarding the evidence of Mr D'Aeth, it must be remembered that he did not bear an evidentiary onus in the proceedings. His cross-examination of Mr D'Aeth did not undermine the witness' evidence on relevant matters.
For these reasons I am satisfied that the claims made by the respondent in the proceedings were relatively stronger than those made by the applicant, but this does not necessarily mean that the applicant's case was overall so weak as to be unarguable.
The applicant had a legally conferred right to seek administrative review of the respondent's decision, which was to the effect that the information sought in the GIPA request was not held, by this Tribunal. The fact that he chose to exercise that right and to conduct his case in the manner that he ultimately chose did not make his case as a whole so weak as to be legally untenable.
I am therefore not satisfied that s 60(3)(c) has been made out.
[8]
(d) the nature and complexity of the proceedings
I accept the respondent's submissions that the matters in dispute in the proceedings were not complex and that they were unnecessarily complicated by the manner in which the applicant presented his case.
I am satisfied that s 60(3)(d) has been made out.
[9]
(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance
The respondent argued that the words 'frivolous' and 'vexatious', used together, may signify that the application lacks a legal foundation or that it is 'not legally properly based': Fox at [26], [28]. Further, 'vexatious' 'can include proceedings brought with the intention or annoying or embarrassing or harassing the other party, or for some collateral purpose other than having the court or tribunal adjudicate on the issues raised by the proceedings, or, irrespective of the motive of the litigant, if the proceedings are so obviously untenable or manifestly groundless as to be utterly hopeless': Re Filsell at [33], Fox at [28].
Further, in Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAD 95, the Tribunal found , at [62], that:
[t]o attempt to use proceedings under the GIPA Act to review the conduct of government agencies and their officers or staff, amounts to the use of those proceedings for a collateral purpose. Attempts to use review proceedings in the Tribunal for a collateral purpose are to be rejected: Crewdson v Central Sydney AHS [2020] NSWCA 345; GA v The University of Sydney [2009] NSWADT 230.
I also accept the respondent's submission that an applicant's history of previous vexatious litigation may be 'logically relevant' to the issue of determining the purpose for which the applicant brought the proceedings, and whether the proceedings are 'vexatious': Zonnevylle at [52].
I have applied these principles to the current matter as follows.
I have found that the applicant's purported reliance upon the Public Interest Disclosure Act 2022 (NSW) was misconceived.
It is apparent from the reasons for decision that one of the reasons that the applicant commenced the administrative review proceedings was to expose alleged misconduct by the respondent and the Tribunal. He persisted in his efforts to agitate these matters despite the Tribunal ruling that it was not conducting a hearing into alleged misconduct.
The applicant sought an order from the Tribunal that the respondent should provide him with the disputed information within 15 days, despite that order having no basis in law. When the Tribunal asked him which provision of the GIPA Act required it to make that order, he replied, "There does not need to be a provision".
It is well established that an attempt to re-litigate a matter that has already been determined may amount to an abuse of process: Walton at 383; [1993] HCA 77; Aon Risk Services Australia Limited at 193.
The respondent argued that the applicant has habitually used legal proceedings with no regard for the merits of a claim, including a claim that it did not make Ms Lin available as a witness so as to 'hide misconduct': Sethi v New South Wales Crime Commission [2024] NSWCATAD 21; Sethi v The Owners - Strata Plan No 93392; Sethi v Cho (No 5) [2024] NSWSC 1335; Sethi v Cho (No 4) [2023] NSWSC 1334; Sethi v Cho [2023] NSWCATAP 179. It submitted that this is a factor indicating that the current proceedings are vexatious.
Based on the evidence before me, I am satisfied that a collateral purpose was involved in the applicant's GIPA request, which was to have the respondent conduct legal research on his behalf so that he could rely upon it in proceedings that he was conducting in the Supreme Court.
However, I have found that he had a legally conferred right to commence the administrative review proceedings in the Tribunal and in my view, while the manner in which he chose to conduct his case was vexatious, the entire proceedings were not frivolous, vexatious, misconceived and lacking in substance.
I am therefore not satisfied that s 60(3)(e) has been made out.
[10]
(f) whether a party has refused or failed to comply with the duty imposed by section 36(3)
I am satisfied that the applicant failed to comply with the duty imposed upon him by s 36(3) of the NCAT Act as follows:
1. He exhibited outbursts when objections were made to his attempt to cross-examine Mr D'Aeth in relation to irrelevant matters and matters that went beyond his affidavit evidence;
2. He refused to answer questions that the Tribunal put to him. His responses included "I don't. I don't have to answer you. You have. To answer me. No, hang on. This is my, I am the member of the public. This is my application. You are you are. You are a public servant, right? And you have a duty assigned to help me. Assist me. Get this information from the agency": see reasons for decision at [22]-[24], [28], [66], [103], [132], [150];
3. He repeatedly sought to re-agitate his recusal application, despite the Tribunal refusing it; and
4. He repeatedly interrupted the proceedings, which necessitated adjournments of the hearing and the intervention of the Sheriff.
I am therefore satisfied that s 60(3)(f) has been made out.
[11]
Conclusion
I am satisfied that the respondent has established the existence of special circumstances and that it is appropriate for the Tribunal to exercise its discretion to make an award of costs pursuant to s 60(2) of the NCAT Act.
[12]
Orders
I make the following orders:
1. A hearing of the respondent's costs application is dispensed with.
2. The applicant is to pay the respondent's costs, as agreed or assessed.
[13]
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
[14]
Amendments
23 April 2024 - Amended the date of decision from 23 March 2024 to 23 April 2024
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: 23 April 2024
Parties
Applicant/Plaintiff:
Sethi
Respondent/Defendant:
Secretary, Department of Communities & Justice
Legislation Cited (4)
(Victorian Civil and Administrative Tribunal Act 1998(Vic)