Bradford v Darkinjung Local Aboriginal Land Council

[2010] NSWADT 45

CITATION:	Bradford v Darkinjung Local Aboriginal Land Council [2010] NSWADT 45
DIVISION:	General Division
PARTIES:	APPLICANT Jeffrey John Bradford RESPONDENT Darkinjung Local Aboriginal Land Council
FILE NUMBER:	083356
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	14 December 2009
DATE OF DECISION:	15 February 2010
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
CASES CITED:	Bradford v Darkinjung Local Aboriginal Land Council [2009] NSWADT 41
REPRESENTATION:	APPLICANT In person RESPONDENT P Woods, solicitor
ORDERS:	Each party is to pay its own costs in the proceedings

REASONS FOR DECISION

1 By letter dated 15 October 2008, the Applicant applied to the Darkinjung Local Aboriginal Land Council (“the Land Council”) pursuant to the Freedom of Information Act 1989 (“the FOI Act”). His application was as follows:

The Darkinjung Local Aboriginal Land Council (DWLC) is a body corporate constituted under the Aboriginal Land Rights 1983. I further note that the Land Council is a public authority and therefore subject to the conditions of s. 7 of the Freedom of Information Act 1989.
I have recently been approached by a number of concerned DLALC members that certain decisions have been made by the Board without reference to the Membership.
In this regard, I seek copies of all Board minutes, notes or records regarding the decision process taken by the Board with the recent appointment of the CEO.
In addition to the above, I am informed an offer to settle a legal matter involving Mr Cunliffe was rejected out of hand and with very and unnecessary extreme haste. Please provide all copies of any minutes, notes or other records that detail the decision making process undertaken by the Board in this regard.

2 There is a long history between the parties in this matter. There is a long history between the parties in this matter. The applicant was formerly Chairperson of the Land Council. It is clear that there is much animosity between them. Some of the details of the relationship are set out in a previous decision of this Tribunal in Bradford v Darkinjung Local Aboriginal Land Council [2009] NSWADT 41 (“the 2009 decision”).

3 The Land Council did not make a determination of the request within the 21-day period allowed by section 18(3) of the FOI Act and accordingly by virtue of section 24(2) of the FOI Act the request is deemed to have been refused.

4 There was no response to the Applicant’s request for internal review of the deemed refusal. In any event, it is common ground that the Land Council is a small agency and that all FOI determinations are made by its Chief Executive Officer. By virtue of section 34(3)(b) of the FOI Act the Applicant was therefore not entitled to seek an internal review of the deemed refusal.

5 On 5 December 2008 the Applicant applied to the Tribunal seeking external review of the Land Council’s deemed determination.

6 By letter dated 4 August 2009 Mr Woods, the solicitor for the Land Council, wrote to the Applicant as follows:

Pursuant to the Freedom of Information (Fees and Charges) Order 1989 itself made pursuant to the power conferred by section 67 of the Freedom of Information Act, 1989 the Chief Executive Officer of Darkinjung Local Aboriginal Land Council has determined that the charge likely to be imposed on you for giving you access to the documents you have requested in your application, additional to the initial $30.00 provided by you with your application, is the further sum of $180.00.
This further sum of $180.00 has been estimated by the Chief Executive Officer of Darkinjung Local Aboriginal Land Council, having regard to the said Order and to your status as a pensioner, as the proper charge to be imposed for the time spent by the agency dealing with your application, and giving you access to the documents, calculated to the nearest quarter hour.
…
You are now requested to provide the writer with your cheque for $180.00 as a deposit against the actual costs of proceedings further with your application.
I am instructed to inform you that it is the decision of the Land Council to decline to take any further action in relation to your Freedom of Information application unless and until you provide the required $180.00 deposit.

7 After a protracted period of discussion and negotiation the Applicant ultimately withdrew his application with the Tribunal and indicated his intention to approach the Ombudsman and the Independent Commission Against Corruption (“ICAC”) in relation to his concerns.

8 The Land Council has applied for an order for costs in relation to the application. Each of the parties has filed written submissions in relation to that issue.

Applicable legislation

9 In most cases, section 88 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”) deals with question of costs which arise for determination from and after 1 January 2009. On that date a new criterion for awarding costs under section 88 came into force by virtue of amendments contained in the Administrative Decisions Tribunal Amendment Act 2008. This replaced the previous requirement that the Tribunal find ‘special circumstances’ warranting an award of costs. This amended form of section 88 is the relevant legislation in the present proceedings, notwithstanding that the proceedings were commenced prior to the commencement of the amendments.

10 Section 88 is in the following terms:

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) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.
(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.

11 Mr Woods provided written submissions in support of the Land Council’s costs application. He submits that the Tribunal should take into account that this is the third application that the Applicant has made, and the Applicant’s intransigence over paying the deposit required. He says that the Applicant has not paid any part of the deposit required by the CEO, and has indicated that he will not do so.

12 He submits that the Land Council has been put to considerable expense by the proceedings that the Applicant has commenced. He says that the Tribunal should also take into account the fact that the Applicant has subsequently made a fourth FOI application.

13 Mr Woods submits that the Applicant seeks two documents, one of which has already been served on him in earlier proceedings, and the second of which has been the subject of a determination by the Tribunal upholding the Land Council’s decision to require payment of $300 before delivery of the document.

14 Mr Woods further submits that it is clear that the Applicant is pursuing these proceedings for reasons other than obtaining documents under the FOI legislation. He argues that it is a misuse of the FOI legislation to be so engaged. He says that the Applicant clearly has no intention of paying the fees determined by the CEO in relation to any of his applications, making the applications pointless other than for their harassing value. He says that a costs order in this matter is appropriate as a means of permitting the Land Council to recover some of the costs that have been wasted in this process.

15 Mr Woods submits that the Tribunal is empowered to depart from the ordinary position that the parties are required to bear their own costs if it is satisfied that it is fair to do so. He urges the Tribunal to have regard to the following:

(a) The Tribunal is entitled to conclude that Mr. Bradford has vexatiously conducted these proceedings, given his clear intention exhibited in this matter, and in several earlier several matters to continue to make FOI applications but not pay required deposits, then conduct Tribunal proceedings, wasting all efforts on both sides of each matter in the process: s. 88(1A)(a)(vi).

(b) The Tribunal is also entitled to conclude that Mr. Bradford, pursuing this claim in the face of a CEO decision to require a deposit, yet again, has knowingly pursued a claim that has no tenable basis in fact or law, and award costs on that basis: s. 88(1A)(c).

(c) The Tribunal also has power to take into account any other matter that the Tribunal considers relevant: s. 88(1A)(e). This power is a matter for the Tribunal, but it does afford Mr. Bradford an opportunity in his written submissions to offer assurances about his future conduct in terms of what is outlined above. If Mr. Bradford now undertakes in writing to the Tribunal that he will cease making applications to the Tribunal in respect of which he has no intention to pay CEO determined deposits, that undertaking should be taken into account in determining costs. A failure to give such an undertaking, as an indicator of Mr. Bradford's future intentions and in light of what has been submitted to be the true nature of the various proceedings, should also be taken into account. When weighing this issue, please recall that in this matter there are two documents that will be produced if Mr. Bradford pays the deposit. One he already has, and the second has been subject of earlier proceedings where he continues to refuse to pay the deposit that was upheld by the Tribunal.

16 Mr Woods also provided written submissions in reply to those provided by the Applicant. He refutes the Applicant's characterisation of the contentions made in his earlier submissions and he noted that the Applicant did not give the undertaking that was sought in his earlier submissions as an alternative to a costs order in these proceedings. The request for a costs order is therefore pressed.

17 He submits that much of the Applicant’s submissions are neither relevant to this matter, true, nor appropriate subject matter for submissions in these proceedings and should be ignored. He further notes that the Applicant can have the documents that were the subject of the 2009 decision when he pays the $300 fee.

The Applicant's case

18 The Applicant provided written submissions in response to the Land Council’s costs application and Mr Woods’ submissions. Much of the content of his submissions is comment on the Land Council’s approach to his FOI request for the documents that were the subject of the 2009 decision and the appropriateness of its appointment of Mr Woods as its representative. In that regard the submissions do not address the issue to be determined and are not taken into account.

19 In relation to the Land Council’s costs application, he argues that he is extremely reluctant to pay any money as requested because he does not trust that the documents he has requested will be provided.

20 He states that he has made a number of requests for information on different issues. However, in many cases the Land Council did not even acknowledge receipt of his correspondence. This placed him in a position whereby he had no other alternative but to seek some assistance from the Tribunal.

21 In response to Mr Woods’ suggestion that his persistence with his applications continues to cause expense, the Applicant submits that if the Land Council had taken the time to process his requests expeditiously or even acknowledge that they would consider his requests, then there would not have been a need for him to make his applications to the Tribunal.

22 He submits that it would have been far cheaper for the Land Council to provide him with the documents that he requested then to pay the cost of representation before the Tribunal and to argue that the Applicant should pay a processing fee.

23 He submits that none of the documents he requested were prima facie controversial in nature however the Land Council has taken extraordinary steps to keep information from him. He says that he proposes to refer this matter to the ICAC.

Discussion
24 The remaining issue in these proceedings is whether an order for costs should be made. I note Mr Woods’ assertion that two documents in issue in these proceedings were the subject of earlier proceedings. The Applicant’s FOI request was not limited to two documents. It would have been a matter of evidence whether Mr Woods’ assertion is correct. If true, that would be a factor relevant to the issue of costs. However, the Land Council has not provided evidence to support its assertion. I note that the Applicant has discontinued the proceedings and consequently evidence and argument has not been presented on the substantive issues. The opportunity to present evidence to support the assertion has now passed.

25 The background to these proceedings and manner in which they have been conducted does neither side credit.

26 At the time of lodging the application to the Tribunal, the Land Council had not made a determination of the Applicant’s FOI request. It appears that the Land Council has also failed to make a determination of other FOI requests that the Applicant has made to it. It certainly failed to do so in relation to the request for the documents that were the subject of the 2009 decision: see comments by Judicial Member Pearson at paragraph 16 of the 2009 decision.

27 Notwithstanding that the Land Council is a small agency with limited resources, the Applicant has correctly asserted that he is entitled to make FOI requests and to expect that the Land Council will determine those requests. If it fails to do so he is entitled to commence proceedings in this Tribunal. In my view the Land Council’s argument that he should not have commenced the proceedings, in circumstances where it had failed to respond to either his initial FOI request or his internal review request, is untenable.

28 The Land Council has argued that the Tribunal should take account of the fact that the Applicant has failed to make any payment towards the $180 deposit that it has requested. In my view, there is no merit in that argument. I note that these proceedings were commenced in December 2008 however the request for a deposit was not made until August 2009. In my view, the Applicant’s failure to pay a deposit that was requested well after these proceedings were commenced is not a basis for an award of costs.

29 Pursuant to subparagraph (e) of section 88(1A) of the ADT Act the Tribunal can take account of any other matter that it considers relevant. Both parties have made reference to the Applicant’s FOI request that was the subject of the 2009 decision and to other FOI requests. The history of the Applicant’s FOI requests and the failure to give an undertaking of his future intentions may be factors relevant to a determination to request an advanced deposit, but in the circumstances of this matter I do not consider that it is relevant to the issue of whether an order for costs should be made.

30 Given the Land Council’s failure to respond to the Applicant’s FOI request it was almost inevitable that these proceedings would be commenced. I am not satisfied that the claim had no tenable basis in fact or law as required by section 88(1A)(c). Nor do I consider that the Applicant conducted the proceedings vexatiously. I am unable to identify any other relevant factor pursuant to section 88(1A)(e) which would make it fair to order that the Applicant pay the Land Council’s costs.

31 Having rejected the arguments put forward by the Land Council, its application for costs should be dismissed.

Order

Each party is to pay its own costs in the proceedings.