(3) The Tribunal may make an order under sub-section (2) only if satisfied that it is fair to do so, having regard to -

(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;

9

In relation to the submission that the claim has no tenable basis in law, Mr Pizer submitted that the subpoenas had no relevance to the issue before the Tribunal and, indeed I set the subpoenas aside because those named in the subpoenas would be unlikely to be able to give relevant evidence in relation to the substantive application.

10

Having noticed that the subpoenas were going to be issued some time in advance of 22 October 2004, the respondent prepared some submissions which were served on the applicant on 25 October 2004. Those submissions gave reasons why the subpoenas should be set aside and stated that the respondent reserves its position as to costs.

11

There was also a letter dated 29 October 2004 which was addressed to the Registrar of this Tribunal but a copy was sent to Mr Dance, who was then the applicant in the proceedings. That letter requests a Directions Hearing and it says the respondent seeks to invoke VCAT's implied power to quash a summons issued under s 104 of the Victorian Civil and Administrative Tribunal Act 1998. The basis of the application is that the recipient of the summons is unable to give relevant evidence. Thus, by a combination of those two documents, the applicant knew or should have known that there was a real question as to the relevance of the evidence that could be given by those named in the subpoenas and that he was at risk in regard to costs.

12

Mr Pizer relies on a decision of Ball SM in Patrick v Bayside City Council (1996/33703 & 1998/20276 dated 7 January 2000). At paras 19 and 21, Mr Ball states :

19. Mr Hayes also asserted that another factor under sub-section (3) was the relative strength 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 Tribunal finds that a significant part of the applicant's claim particularly in relation to the documents which are exempt are due to legal professional privilege under section 32 of the Act had no tenable basis in fact or law.

21. Mr Patrick on the other hand asserted that it was important that a lay person could come before the Tribunal and not be affected by the threat of a costs order and that he was at a distinct disadvantage making arguments against a legally qualified person. He said that 'no matter how well I put my case I can't compete with Maddock Lonie & Chisholm' and stated that it would be a great hardship to him if costs were awarded. He argued that individuals must be able to challenge the State.

13

At paragraph 23, the learned member stated :

23. While the Tribunal accepts that it is important that a lay person should be able to come before the Tribunal and not be affected by threat of costs, the Tribunal is of the view nevertheless that a Council should not be put to unreasonable expense in defending freedom of information applications in circumstances where a request has no tenable basis in fact or law and which incurs the expenditure of ratepayers' funds.

14

I agree entirely with what the learned member had to say in paragraph 23. The question before me is, does the proposition that the learned member put have application to the circumstances of this case? In my view, it does.

15

The applicant was given warning that there was no relevant evidence that the intended witnesses would be able to give to the Tribunal. I made a finding that there was no relevant evidence that those witnesses could give to the Tribunal. Under those circumstances, I find within the meaning of s 109(3)(c) that there was no tenable basis in fact or law for the applicant to issue the subpoenas.

16

The applicant knew the type of evidence that he expected these witnesses to be able to give because he produced statements of the evidence that they were likely to give. Those statements did not contain any relevant information in relation to the substantive application. Thus I find there is no tenable basis in fact or law for the issue of the subpoenas.

17

I also take into account that Mr Pizer and his instructor in preparing the application to have the subpoenas set aside needed to look at complex issues of fact and law and there was considerable complexity in the nature of that proceeding. Thus I find that sub-section (d) is also made out.

18

Given those two circumstances, in my view, it is quite appropriate that the normal order of the Tribunal that there be no order for costs be departed from and that the applicant be ordered to pay certain costs in relation to the setting aside of those subpoenas. Those costs should be on County Court Scale "A".

19

Mr Pizer has agreed that none of his brief fee for attendance on that day should be part of those costs. He has done so on the basis that he would have had to attend on the day the subpoenas were set aside in any event and, under those circumstances, he did not claim the brief fee as part of the costs of setting aside the subpoenas. I think that concession was entirely proper.

20

Mr Pizer has claimed the costs of the Directions hearing on 5 November 2004. At that hearing, the Deputy President did not deal with the subpoenas but she said that it was proper that they be dealt with at the hearing. Mr Pizer urged that the costs of that Directions Hearing were necessary because otherwise the persons who were subpoenaed would have to be at the Tribunal on the day or at least be on standby. In my view, the Directions Hearing could have been avoided by notifying both the applicant and the Tribunal of the difficulties. I will not allow costs for that Directions Hearing. However, I believe that the cost of preparation of having the subpoenas set aside and the costs of instructing counsel in relation to that matter should be allowed as well as any other costs incurred in having the subpoenas set aside. I will make orders accordingly.