BN v Hornsby Shire Council (2)

[2013] NSWADT 55

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	BN v Hornsby Shire Council (2) [2013] NSWADT 55
Hearing dates:	On the papers
Decision date:	07 March 2013
Jurisdiction:	General Division
Before:	S. Higgins, Deputy President
Decision:	The applicant's application for costs is dismissed.
Catchwords:	Costs
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Privacy and Personal information Protection Act 1998
Cases Cited:	AT v NSW Police [2010] NSWCA 131
Category:	Costs
Parties:	BN (applicant) Hornsby Shire Council (respondent)
Representation:	Applicant in person I Woodward of Storey and Gough Lawyers for the respondent
File Number(s):	113158

REASONS FOR DECISION

Introduction

1. On 13 August 2012, my decision and reasons for decision were published in respect to the applicant's application for review of conduct of the respondent agency, which the applicant asserted to have been a breach of the disclosure information protection principle as set out in subsection 18(2) of the Privacy and Personal Information Protection Act 1998 (PPIP Act): see BN v Hornsby Shire Council [2012] NSWADT 165. In that decision I found that the conduct of the respondent, in so far as it related to the disclosure of the applicant's personal information on its website, on 10 December 2010, was a breach of the PPIP Act and I made orders accordingly.

1. In his application for review, the applicant also sought costs. Accordingly, in my decision I made orders for the filing and serving of evidence and written submissions in the event the applicant wished to pursue that application.

1. The applicant and the respondent filed and served written submissions in accordance with the orders made. I have considered that material and I have determined to make no order as to costs and these are my reasons for decision in regard thereto.

Relevant Law

1. The tribunal's power to award costs is set out in s 88 of the Administrative Decisions Tribunal Act 1997 (ADT Act). It relevantly provides as follows:

88 Costs

(1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section.

(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or

(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or

(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or

(iv) causing an adjournment, or

(v) attempting to deceive another party or the Tribunal, or

(vi) vexatiously conducting 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) any other matter that the Tribunal considers relevant.

(2) The Tribunal may:

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.

(3) ...

(4) In this section, costs includes:

(a) costs of or incidental to proceedings in the Tribunal, and

(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application

1. As can be seen from the terms of subsection 88(1), the general rule is that each party pay its own costs of the proceedings. However, the tribunal does have power (i.e. a discretionary power) to award costs if it is satisfied that it is fair to do so, having regard to the matters set out in subsection 88(1A). Section 88 applies to first instance proceedings before the tribunal and appeals before the Appeal Panel of the tribunal.

1. In AT v NSW Police [2010] NSWCA 131, the Court of Appeal considered the application of section 88 of the ADT Act. At [33], the Court reiterated that an order varying the general rule that each party pay its own costs 'may be made "only if" the relevant criterion' in subsection 88(1A) is satisfied. It went on to state that 'there is a relatively low hurdle for an applicant seeking an order' under section 88. The Court also said 'the criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party.' However, the Court of Appeal's remarks do not go so far to say that success alone is a basis to depart from the general rule that each party pay its own costs.

The applicant's claim for costs

1. In support of his application, the applicant provided a copy of three invoices from his solicitor, Woolf Associates, a document, dated 21 August 2012 headed 'CONFIDENTIAL OFFER' and an email from his solicitor dated 30 August 2012. The document headed 'CONFIDENTIAL OFFER' is in the form memorandum to the General Manager of the Council and all Councillors (with the exception of two named Councillors) from the applicant setting out a proposed settlement of the proceedings. Included in the proposal was an agreement to pay the applicant's costs. However, the body of the memorandum contains a statement, in bold, to the following effect 'Mr Woolf, I seek your advice on below alternatives.' The alternatives were the applicant's proposal for the settlement of the proceedings.

1. As I understand the written submissions from the applicant, he seeks an order for costs for the sum of $2,750. That amount being made up as follows:

• $2,750 (inclusive of GST) as per the invoice of his solicitor dated 21 November 2011, and
• $200 in regard to the advice the applicant received from his solicitor in regard to his application for costs.

The respondent's claim

1. The respondent contended that the applicant had failed to establish any circumstances, which justified a departure from the ordinary course that each party pay its own costs. That is, the applicant has failed to put forward any basis on which the tribunal could be satisfied that it would be fair to make an order for costs having regard to the factors set out in s88(1A)(a) to (e). The respondent went on to address each of these factors. In this regard, it contended as follows:

• the conduct of the respondent in these proceedings did not in any way disadvantage the applicant - the fact that there were three planning meetings were not due to any adverse conduct by the respondent,
• the respondent did not unreasonably prolong the proceedings - on the contrary the respondent complied with the orders that were made,
• the respondent's claim was reasonably arguable - that is, it was not unarguable, unreasonable or untenable and the respondent had at all times acted in good faith,
• the tribunal did not accept the entirety of the applicant's claim (i.e. alleged breach of ss 16 and 17 of the PPIP Act, and
• the respondent has at no time sought costs against the applicant in regard to review applications he has brought in regard to decisions or conduct of the respondent.

Consideration

1. I have placed very little weight on the document 'CONFIDENTIAL OFFER' as I am not able to ascertain whether it had in fact been sent to the respondent. Even if it had been sent, in my view to the extent it refers to costs it is of little assistance in determining the matters in issue. The applicant's understanding as to what constitutes costs seems to be entirely misconceived. Hence it was not in a form to which the respondent could give serious consideration.

1. In his written submissions the applicant did not otherwise point to any conduct by the respondent, which disadvantaged him in these proceedings. Nor in my opinion, is there any basis to suggest that the respondent acted in a manner, which delayed these proceedings. On the contrary, at all times it accommodated the wishes of the applicant. The application first came before me, at a planning meeting, on 16 August 2011. By consent, an order was made that the respondent file and serve its evidence by 30 September 2011. The applicant was also ordered to file and serve, by 14 October 2011, written details, of no more than 1,500 words, of his arguments in regard to the conduct of the respondent he alleged to be a breach of information protection principle and the remedies he was seeking.

1. There were three further planning meetings, on 13 September 2011, 8 November 2011 and 21 February 2012. These planning meetings were set down on days, which were suitable to the applicant. And an extended timetable was set as the applicant sought to resolve the dispute. In my view, the applicant and the representatives of the respondent have conducted themselves appropriately throughout these proceedings and other proceedings, before me, to which they have been a party in this regard.

1. Hence, I agree with the contentions of the respondent that it has not acted, during the course of these proceedings, in a manner that has disadvantaged the applicant in his claim, in so far as that claim fell within the jurisdiction of the tribunal.

1. This leaves the issue as to whether the respondent's position, in regard to the conduct in issue, was unarguable, or without merit. While I do not fully accept the submissions of the respondent in regard to the findings of the tribunal and the effect thereof, I agree that it cannot be said that the respondent's position had no merit.

1. Accordingly, I am not satisfied that the applicant has established that the general rule of each party paying its own costs be departed from. For these reasons the appropriate order is that the applicant's application for costs is dismissed.

Decision last updated: 07 March 2013