C v Secretary, NSW Treasury (No 4)

[2003] NSWADT 263

CITATION:	C v Secretary, NSW Treasury (No 4) [2003] NSWADT 263
DIVISION:	General Division
PARTIES:	APPLICANT C RESPONDENT Secretary, New South Wales Treasury
FILE NUMBER:	013081
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	10/08/2003
DATE OF DECISION:	12/12/2003
BEFORE:	Hennessy N - Magistrate (Acting President)
APPLICATION:	Costs
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Victorian Civil and Administrative Tribunal Act 1998
CASES CITED:	Alessa Pty Ltd v Total & Universal Pty Limited [2002] NSWADTAP 16 Boscolo v Secretary, Department of Social Security (1999) 29 AAR 120 C v Secretary, NSW Treasury [2001] NSWADT 217 C v Secretary, NSW Treasury (No. 2) [2002] NSWADT 235 C v Secretary, NSW Treasury (No. 3) [2003] NSWADT 200 Charteris v General Manager, Leichhardt Council (No. 2) [2000] NSWADT 109 Charteris v General Manager, Leichhardt Municipal Council (No. 2) (GD) [2001] NSWADTAP 39 Hurt v Director-General, Department of Fair Trading [1999] NSWADT 50 McCabe v Electoral Commissioner, State Electoral Office (No. 2) [2003] NSWADT 58 Mangoplah Pastoral Company Pty Ltd v Great Southern Energy (No 2) [2000] NSWADT 4 Prasad v Fairfield City Council [2002] NSWADTAP 2 Preston v Chief Executive Officer, Casino Control Authority & Ors (No. 2) [2003] NSWADT 229 Sloey v State Transit Authority [1999] NSWADT 40
REPRESENTATION:	APPLICANT In person RESPONDENT M Allars, counsel
ORDERS:	1 The applicant's application for costs is dismissed

1 The applicant, Mr C, has made an application for costs against the respondent, the Secretary, NSW Treasury (the agency). On 25 August 2003, the Tribunal handed down a decision in the substantive matter, C v Secretary, NSW Treasury (No. 3) [2003] NSWADT 200. Mr C’s application related to a decision of the agency to refuse to amend a medical report pursuant to s 43 of the Freedom of Information Act 1989 (the FOI Act). The agency refused to amend the report because it was satisfied that its records were not incomplete, incorrect, out of date or misleading in a material respect. The Tribunal made the following orders:

1. The agency's decision to refuse to amend the undated report of Dr Y Lucire in relation to the applicant is set aside.

2. In substitution for that decision a decision is made to attach a notation to the report, and every copy of the report held by the agency, in the following terms:

"The attached document is incorrect in a material respect pursuant to the Freedom of Information Act 1989. In particular Dr Lucire's diagnosis that Mr C (insert full name) has a Narcissistic Personality Disorder and a Paranoid Delusional Disorder is incorrect. For further details, see the decision of the Administrative Decisions Tribunal in C v Secretary, NSW Treasury (No. 3) [2003] NSWADT 200."
3. If Mr C wishes to make an application for costs, he should do so within 28 days of the date of this decision.

4. If such an application is made, the agency is directed to file and serve any submissions in reply within 28 days of being served with the application.

5. Any application for costs will be determined by the Tribunal "on the papers" pursuant to s 76 of the Administrative Decisions Tribunal Act 1997.

2 Mr C made an application for costs on 10 September 2003. The agency filed its submissions on 8 October 2003. In accordance with the Tribunal's previous order, this application is to be decided “on the papers” pursuant to s 76 of the Administrative Decisions Tribunal Act 1997 (ADT Act).

Costs application

3 Mr C was not legally represented and sought costs only in respect of the following expenses:

· "The amount of $930 representing the fees of Dr Napper (and GST) for his appearance as a witness in these proceedings, as per the enclosed copy of his Account for Service dated 19 March 2002 (already paid in full).

· The amount of $200 representing the cost of photocopying and other expenses associated with serving summonses and collecting documents from the Tribunal, i.e. documents produced in response to the summonses."

Relevant Law

4 Section 88 of the ADT Act sets out the Tribunal’s power to award costs in these proceedings. That section provides that:

(1) 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 there are special circumstances warranting an award of costs.

(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 the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 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.

5 The issue is whether there are “special circumstances” warranting an award of costs against the agency. The operation of s 88 of the ADT Act in the context of proceedings under the FOI Act has been considered in a number of cases. (See Mangoplah Pastoral Company Pty Ltd v Great Southern Energy (No 2) [2000] NSWADT 4; Charteris v General Manager, Leichhardt Municipal Council (No. 2) (GD) [2001] NSWADTAP 39; Preston v Chief Executive Officer, Casino Control Authority & Ors (No. 2) [2003] NSWADT 229; McCabe v Electoral Commissioner, State Electoral Office (No. 2) [2003] NSWADT 58.) These cases have interpreted s 88 as meaning that parties should normally meet their own costs and that success is not a special circumstance warranting an award of costs.

6 In Sloey v State Transit Authority [1999] NSWADT 40 at [12] the Tribunal interpreted s 88 as asking "whether there is something within (the circumstances of the case) which would justify the awarding of costs". That test must be applied keeping in mind that the discretion is “not lightly to be enlivened" (c.f. Boscolo v Secretary, Department of Social Security (1999) 29 AAR 120 at 124, and cases there cited. See also Hurt v Director-General, Department of Fair Trading [1999] NSWADT 50). In Mangoplah Pastoral Company Pty Ltd -v- Great Southern Energy (No. 2) [2000] NSWADT 4 that Tribunal stated at [5]:

The legislature has given a clear indication that the Tribunal is not to apply the usual approach to an unfettered discretion to award costs in judicial proceedings, i.e. that the successful party can expect to enjoy the benefit of a costs order. Something more than success is needed to warrant an order, whether the successful party is a citizen challenging an administrative decision or an administrative agency resisting such a challenge. Moreover, due to the inherent nature of the Tribunal's jurisdiction in its General Division, the fact that the proceedings concern the correctness of an action taken by a government agency does not of itself raise a "special" consideration. In such proceedings both sides should normally come to the Tribunal with the expectation that they will carry their own costs.

7 In Charteris v General Manager, Leichhardt Council(No. 2) [2000] NSWADT 109, another case involved freedom of information legislation, the Tribunal said at [6]:

I accept the view...that the costs power should not be used as "some kind of sanction to punish agencies for poor administration" preceding the Tribunal proceedings and that the Tribunal should not embark on a" general enquiry into the way in which the agency dealt with the applicant." However...it may be relevant to consider whether an agency has failed to observe statutory procedures "pertinent to an application" to the Tribunal, at least where it is found that these have had an impact on the costs incurred by the applicant so as to make it appropriate that the agency should indemnify some or all of them. When considering an agency's conduct in relation to the proceedings, I remain of the view expressed in Mangoplah...: " in a costs application under section 88(1), I do not think that the reasonableness of a party's contest of proceedings before the Tribunal should be assessed by an overly critical scrutiny".

8 In March 2003, the Tribunal issued a Practice Note in respect of costs (Practice Note No 12). That Note emphasises that in proceedings for review of a reviewable decision "costs can only be ordered in special circumstances " (at [4]). The Practice Note also sets out, by way of example, circumstances that may be special and therefore justify a cost order. Those circumstances include “whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings”.

9 Mr C submitted that there were five special circumstances warranting an award of costs. These were:

· the complexity and duration of the matter;

· the agency’s conduct;

· the requirement for his witness to attend in person;

· the interests of justice; and

· the public interest.

10 Complexity and duration of the matter. Mr C submitted that the complexity and duration of the matter warranted an award of costs. Mr C lodged his application on 6 April 2001 and the Tribunal made its final decision on 25 October 2003. Complexity and length, by themselves, do not generally constitute special circumstances.

11 The agency’s conduct. Mr C also submitted that the agency unreasonably frustrated and delayed the proceedings. In particular he submitted that the respondent repeatedly raised objections and issues that they knew, or should have known, would not succeed. The respondent stated that it conducted its case with propriety and did not prolong the proceedings. According to the respondent there is no evidence to support the suggestion that the respondent’s counsel raised objections or issues without merit or for improper motive.

12 If a party has acted reasonably then generally no costs should be ordered against that party, even if they are unsuccessful. Prasad v Fairfield City Council [2002] NSWADTAP 2 at [36] and Alessa Pty Ltd v Total & Universal Pty Limited [2002] NSWADTAP 16 at [30]. However where one party’s conduct has placed the other party at an unfair disadvantage or where a party has been responsible for unreasonably prolonging the time taken to complete the proceedings then an award of costs may be justified. These factors are listed as relevant in the Victorian Civil and Administrative Tribunal Act 1998 s 109(3)(a) and s 109(3)(b). In my view they are also relevant to the issue of whether special circumstances exist under s 88.

13 The proceedings were significantly lengthened due to the fact that the respondent made five interlocutory applications. Those applications were:

(1) that Mr C had not made out a prima facie case that the report in question is incomplete, incorrect, out of date or misleading in a material respect;

(2) that the Tribunal had no jurisdiction to review the substratum of Dr Lucire's medial report, including the jurisdiction to vary her findings of fact or substitute its own findings of fact for those in the report;

(3) that the review sought by Mr C was an abuse of process;

(4) that the Tribunal would be in contempt of the Industrial Relations Commission if it allowed further examination or cross-examination of two witnesses; and

(5) that the Tribunal should not issue a summons at Mr C’s request for the production of certain documents to the Registrar of the New South Wales Industrial Relations Commission.

14 Each of these applications was unsuccessful and none was the subject of an appeal. (C v Secretary, NSW Treasury [2001] NSWADT 217 and C v Secretary, NSW Treasury (No. 2) [2002] NSWADT 235.)

15 In relation to the first application, I commented in C v Secretary, NSW Treasury [2001] NSWADT 217 that “By conducting a separate hearing into this issue, both parties were put to unnecessary expense and delay”. Of course it was the respondent’s application and so it was primarily Mr C who was put to unnecessary expense and delay.

16 The Tribunal rejected the respondent’s applications in relation to jurisdiction and abuse of process. Similarly the respondent’s submission that this Tribunal would be in contempt of the Industrial Relations Commission if it allowed further examination or cross-examination of certain witnesses was rejected. The question is whether the number of interlocutory applications, and perhaps their merit, means that the proceedings were unreasonably prolonged.

17 Despite Mr C’s assertion, there is no evidence on which a finding can be made that the agency had any improper motive in making any of the interlocutory applications. While those applications had, at best, a remote chance of success, the agency’s conduct cannot be regarded as unreasonable on that count. In the absence of any facts on which an inference can be drawn that the agency was motivated by ill-will, or conducted itself unprofessionally, there is no justification for an award of costs.

18 Expert witness attending in person. Mr C contended that the costs for Dr Napper, an expert witness, to give evidence were increased by the agency’s request that he appear in person. Dr Napper was willing to give evidence by phone which would have saved Mr C the costs of his attendance, but the agency objected on the basis that it wished to assess Dr Napper’s demeanour. Mr C submitted that as the agency insisted on Dr Napper attending in person, the agency should pay for the cost of his appearance at the hearing.

19 The agency pointed out that Dr Napper was the applicant’s principal witness and it was entirely appropriate to require him to attend the hearing for cross- examination. The agency indicated that requiring a witness to attend a hearing to give evidence and be cross-examined is the usual practice of the Tribunal. It enables the parties and the Tribunal to assess the demeanour of the witness and the veracity of his or her evidence. The agency also highlighted the Tribunal’s power to call witnesses before it to give evidence under ss 83 and 84 of the ADT Act.

20 While it is understandable that Mr C wished to minimise his costs, I accept the agency’s submission that it was not unreasonable for it to require Dr Napper to appear in person. Dr Napper was critical of Dr Lucire’s report and that evidence was vigorously tested by the agency.

21 Interests of justice and the public interest. The fourth and fifth grounds relied on by Mr C were that it is in the interests of justice and also in the public interest that an award of costs be made. The points Mr C made about the interests of justice relate to the long and difficult process he has engaged in, in an attempt to have an “incorrect” medical diagnosis changed. While that process was undoubtedly complex and time consuming, it does not constitute a special circumstance. In relation to the public interest submission, Mr C highlighted the agency’s statement in its submissions that there is no Australian case where an amendment has been made to a professional report by a medical practitioner. According to Mr C, it is in the public interest that the decision “sends a message to Government employed medical practitioners and external consultants that their opinions are open to scrutiny and amendment under the FOI Act”.

22 While the Tribunal accepts that there is a public interest element to freedom of information proceedings, the existence of such an interest does not constitute special circumstances within the meaning of s 88. This case is similar to McCabe v Electoral Commissioner, State Electoral Office (No. 2) [2003] NSWADT 58 where the Tribunal found that public interest in the litigation was secondary to the personal interest of the applicant.

Conclusion

23 While the agency engaged in conduct which prolonged the time taken to complete the proceedings, that conduct was not “unreasonable” in the sense that it was unprofessional or motivated by ill-will. Consequently, the agency’s conduct does not constitute special circumstances warranting an award of costs. The applicant’s application for costs is dismissed.