Steinle-Davies v Inner West Council [2025] NSWCATAD 108

1. The respondent relies upon the following documents and evidence:

(1) Submissions dated 26 March 2025; and

(2) Statement of Matthew To dated 26 March 2025.

1. The respondent argues that there are "special circumstances" warranting an order for costs and it relies upon the alleged weakness of the applicant's claim (s 60(3)) and an allegation that the proceedings were "vexatious, misconceived or lacking in substance" (s 60(e)).
2. More specifically, the Respondent relies on the following matters as establishing the special circumstances warranting an order for costs:

(1) On 17 October 2024, it advised the applicant that the consultation survey (the subject of the GIPA request) would form no part in its consideration. Therefore, the applicant was on notice that the requested information could only have negligible value.

(2) A letter from the applicant dated 29 November 2024, demonstrates that the proceedings were brought for an ulterior purpose, namely "an attempt to exert influence over the Council in its recommendation about the closure of Jaggers Lane". This is evident in the manner in which the applicant sought to negotiate with it, advising that he would discontinue proceedings if it changed the recommendation made by its traffic engineers.

(3) Its attention was specifically drawn to s 14 of the GIPA Act, and the presumption against the disclosure of the personal information that the GIPA request sought, and it placed the applicant on notice that it considered the GIPA request to be "misconceived or lacking in substance".

(4) The applicant did not clearly articulate the purpose for which he sought the disputed information in his submissions or at during the hearing. It asserted that there was "no identifiable value in the information sought."

1. On that basis, the respondent seeks an order that the applicant pay its costs from 17 October 2024 up to and including the hearing on 20 December 2024. It filed a Bill of Costs, which itemises its costs in relation to the GIPA dispute and that its legal fees (solicitors) during the period claimed totals $4,001.42, and counsel's fees total $6,350.00.

1. Mr To stated that he has been employed by the respondent as a Senior Paralegal since 25 September 2023 and that his role involves assisting its Legal Team with legal matters, including drafting and reviewing documents, preparing and filing bundles of documents and engaging in correspondence.
2. Mr To stated that on 17 October 2024, the respondent wrote to the applicant, advising him that it was "considering different options and would therefore initiate a new community survey" and that the results of the previous survey (the subject of the GIPA request) would not be counted in the new survey and were therefore redundant. It invited the applicant to consider discontinuing the proceedings.
3. However, the applicant did not respond to the letter dated 17 October 2024, and on 7 November 2024, the respondent wrote to him and reiterated that the requested survey results were now redundant and the information "had no identifiable value". The respondent also expressed its view that this fact, in conjunction with the overriding public interest against disclosure of the disputed information, resulted in "the application being without prospects of success." It again invited the applicant to withdraw the application for administrative review and formally put him on notice that if this were not done, it would seek a costs order against him if his application were unsuccessful.
4. The applicant did not respond to the respondent's letter dated 7 November 2024. However, on 29 November 2024, he sent a letter containing an offer "to withdraw the application before the Tribunal if Council's traffic engineers recommended no changes to the laneway to the Local Traffic Committee".
5. On 2 December 2024, the respondent rejected that offer on the grounds that it did not relate to the substance of the proceedings, which was the information of respondents to its initial traffic survey.
6. On 19 December 2024, the respondent sent an email to the applicant, attaching the Minutes of the Local Traffic Committee Meeting dated 9 December 2024, which recommended placing a central bollard effecting only partial closure of the lane, so that the applicants' parents property of the retained vehicular access to the laneway. It again invited the Applicant to withdraw the application for administrative review.
7. However, the applicant did not withdraw the application and it proceeded to hearing by the Tribunal on 20 December 2024.

1. In his submissions filed on 23 April 2025, the applicant did not dispute paras 5 to 9 of the Respondent's submissions. He also did not dispute the chronology of the correspondence set out in paras 10 to 14 of those Submissions. However, he stated that he "does not accept the characterisation of that series of communications as set out in the Respondent's submissions." before the Tribunal.
2. The applicant complained about the respondent's conduct as follows:

5. The correspondence of Thursday night 19 December 2024 and the Respondent's Submissions do not address the delay between the outcome of the Council meeting of 9 December 2024 and the notification of that outcome at 11:29pm on 19 December 2024.

6. Further, whilst the Respondent in their Submissions allege the Applicant proceeded with an 'ulterior purpose' in the negations between the parties (re the Applicant's without prejudice offer of 29 November 2024), Council effectively undertook to negotiate with the Applicant on effectively the same basis of the alleged 'ulterior purpose' i.e. that in light of the Traffic Management Committee's recommendation for the installation of a single bollard to the entry to the lane, the Applicant should withdraw his application.

7. It is disingenuous of the Respondent to assert an ulterior purpose in the context of without prejudice negotiations whilst seeking to negotiate on the same basis.

8. The Senior Member's decision of 4 March 2025 does not suggest that the application was "vexations, misconceived or lacking in substance".

9. Minutes of the meeting on 9 December 2024 indicate that the recommendations of the Traffic Management Committee were in fact considered as part of the discussions which, prima facie, contradicts Council assertions that those previous community engagement results were redundant.

10. There are no special circumstances in this matter which would justify an order for costs as sought by the Respondent. The Tribunal's discretion in relation to costs, having regard to the underlying principle that parties to proceedings in the Tribunal are (E Move Pty Ltd v Naomi Dickens {2015] NSWCATAP94 [48]) is in my submission, appropriately exercised, by upholding that underlying principle.

11. In the event that the Tribunal exercises its discretion to award costs, the Applicant makes the following submissions in relation to 'Bill of Costs' filed with the Tribunal on 1 April 2025.

12. The Respondent's submissions at 12 seeks an order for costs from 17 October 2024 up to and including the hearing of 20 December 2024.

13. The Bill of Costs identifies matters form 14 June 2024 to 20 December 2024 i.e. outside the period to which the application is directed.

14. Further, in respect of Legal Professional Costs, the Respondent identifies those employees of Council involved in the proceedings. Specifically, it is noted that Mr Matthew Pearce (MP) is a solicitor with 28 years' experience. Mr Pearce is assisted by Ms Duncan (RD) a lawyer with 2 years' experience.

15. It is submitted by the Applicant that given his experience, Mr Pearce was well able to conduct the proceedings on the part of the Council and that the briefing of a Barrister was unnecessary in the circumstances. Further, conferences with the Barrister of 11 December 2024 and 16 December 2024 did not require the attendance of Mr Pearce in circumstances where Rachel Dunstan had effectively had the conduct of the proceedings up until 5 November 2024.

16. In the event therefore that the Tribunal exercises its discretion in favour of the Respondent on the question of costs, those costs should be limited for the reasons expressed above subject to assessment in the normal course.

(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, 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.

1. The respondent argued that the applicable principles are as follows:

(1) Section 60(2) of the NCAT Act requires it to demonstrate "special circumstances" warranting the making of a costs order.

(2) The special circumstances do not have to be "extraordinary or exceptional": CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21, [32].

(3) Each case will depend on its own particular facts and circumstances: Brunsporp Pty Ltd v Joanne Hay & Wes Davies [2015] NSWCATAP 152, [27];

(4) The award of costs is discretionary in nature, and the discretion to award costs must be exercised judicially and 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, [48].

1. I accept the respondent's submissions in this regard.
2. In YKD v YKE (No 2) [2025] NSWCATAP 101, the Appeal Panel stated, relevantly:

8. The principles governing YKE's costs application are not in doubt and require only brief reiteration. In Cripps v G & M Dawson [2006] NSWCA 81 it was accepted in relation to the term "special circumstances" that "It suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional. While a finding of serious unfairness is not a prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration." In CEU v University of Technology Sydney [2017] NSWCA 280, at [4], the Court of Appeal also accepted that "To establish special circumstances, it is sufficient that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional." The Tribunal has consistently approached "special circumstances" on that basis.

9. With respect to the expression "no tenable basis in fact or law" in s 60(3)(c) of the CAT Act, the dismissal of YKD's appeal, and the Appeal Panel's reasons for it, suggest that YKD's challenges to the decision at first instance lacked a tenable basis in fact or law.

10. A complaint is said to be lacking in substance when it is demonstrated that there exists no factual basis for the allegation or that the complaint is not reasonably arguable (Langley v Niland & Anor [1981] 2 NSWLR 104).

1. Based on the Appeal Panel's decision, it is first necessary to consider whether the respondent has established special circumstances enlivening the discretion to make an award of costs.
2. During the hearing on 20 December 2024, Ms Beljic's opening statement confirmed the advice provided by the respondent to the applicant before the hearing date, that the respondent would not be relying upon the responses to the consultation process that were the subject of the GIPA request.
3. Ms Beljic confirmed that the respondent commenced a new community engagement process on 28 October 2024, which was completed on 1 December 2024, which allowed three optional responses. The Traffic Committee ultimately recommended option 2 and this decision was endorsed and had been submitted to Transport for NSW for approval.
4. While I note that the applicant initially objected to the tender of the Traffic Committee's recommendation, he ultimately consented to its admission into evidence. I am satisfied that this document verifies the submissions made by Ms Beljic.
5. The respondent relied upon certain public interest considerations against disclosure of the disputed information, which was essentially the personal information of respondents to the previous consultation process (cll 3(a)) and 3(b) of the table to s 14(2) of the GIPA Act and that the responses were received on a confidential basis (cl 1(f)) and argued that if the disputed information was disclosed, there was a risk of harm or a risk of serious harassment (cl 3(f)).
6. During the hearing, the applicant stated that he pressed his demand for disclosure of all of the disputed information, despite the Tribunal spending a significant amount of time attempting to explain to him that based upon the respondent's evidence, which he did not dispute, the disputed information was essentially redundant.
7. Ultimately the applicant stated that he did not seek the personal information of the respondents to the previous consultation process. However, this still required the Tribunal to determine the dispute in accordance with the terms of the GIPA Act.
8. The Tribunal ultimately determined that there was an overriding public interest against disclosure of the disputed information, as the public interest considerations in favour of its disclosure were outweighed by those against its disclosure and it affirmed the respondent's decision.
9. Based on the respondent's evidence that it commenced a new community engagement process on 28 October 2024, I am satisfied that the applicant was on notice from that time that the disputed information would not be relied upon by the respondent in deciding whether or not to close the relevant laneway.
10. As the personal factor of the GIPA request was to obtain information to enable the applicant to oppose the closure of the relevant laneway, the respondent's evidence that it would not consider any information resulting from the previous consultation process in deciding whether to close the laneway significantly undermined that personal factor.
11. The respondent confirmed its position in writing to the applicant on 17 October 2024 and 7 November 2024, but the applicant did not respond to either letter. However, on 29 November 2024, he sent a letter to the respondent in which he offered to withdraw the application before the Tribunal if Council's traffic engineers recommended no changes to the laneway to the Local Traffic Committee. The respondent rejected that offer on the basis that it did not relate to the disputed information in the Tribunal proceedings, namely the responses to the previous traffic survey.
12. On 19 December 2024, the respondent sent an email to the applicant, attaching the Minutes of the Local Traffic Committee Meeting dated 9 December 2024, which recommended placing a central bollard effecting only partial closure of the lane, so that the applicants' parents property of the retained vehicular access to the laneway. It again invited the Applicant to withdraw the application for administrative review.
13. The applicant did not withdraw the application and he pressed his claim for access to all of the disputed information. However, at the completion of his oral submissions on 20 December 2024, , he applicant stated that he did not seek access to the personal information of those who responded to the community engagement survey that is the subject of his GIPA request.
14. While the respondent argued that the Tribunal proceedings were brought for an ulterior purpose, being "an attempt to exert influence over the Council in its recommendation about the closure of Jaggers Lane," I reject that argument as the Tribunal proceedings were commenced before 17 October 2024.
15. I reject the applicant's submissions to the effect that it was unreasonable for the respondent to brief counsel to represent it at the hearing of the Tribunal proceedings, given the experience of its Legal Team. It is not a matter for the Tribunal to dictate the level of legal representation that a party to proceedings chooses to have.
16. I also observe that it was open to the applicant to obtain advice in relation to the proceedings generally, and the respondent's correspondence dated 17 October 2024 and 7 November 2024, respectively, but he chose to represent himself in these proceedings, ultimately to his detriment.
17. I am satisfied that the respondent has established special circumstances under s 60(2)(e) of the NCAT Act, on the basis that following its advice to the applicant dated 17 October 2024, the Tribunal proceedings were lacking in substance.
18. On that basis, I am satisfied that the discretion to award costs is enlivened.
19. Section 60(4)(b) of the NCAT Act provides the basis on which costs may be awarded.
20. While the respondent has filed a Bill of costs, I am not satisfied that it is appropriate to make a lump sum costs order. Rather, I consider it appropriate to order the applicant to pay the respondent's costs from 17 October 2024 to 20 December 2024 (inclusive), as agreed or assessed.

(1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013, I dispense with a hearing of these proceedings.

(2) Within thirty (30) days of the date of this order the applicant is to pay the respondent's costs from 17 October 2024 to 20 December 2024 (inclusive), as agreed or assessed.

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.