Chand v Railcorp

[2009] NSWADTAP 64

Appeal Panel - Internal

CITATION:	Chand v RailCorp (GD) [2009] NSWADTAP 64
PARTIES:	APPELLANT Bimla Chand RESPONDENT RailCorp
FILE NUMBER:	099020
HEARING DATES:	8 October 2009
SUBMISSIONS CLOSED:	8 October 2009
DATE OF DECISION:	10 November 2009
BEFORE:	O'Connor K - DCJ (President); Montgomery S - Judicial Member; Fitzgerald R - Non-Judicial Member
CATCHWORDS:	Freedom of Information – Agency Refusal – Unreasonable Diversion of Resources – Applicant's Appeal dismissed – Respondent's Costs of Appeal – Limited Costs order – Freedom of Information Act 1989, s 25(1)(a1), Administrative Decisions Tribunal 1997, s 88(1A)
DECISION UNDER APPEAL:	Chand v RailCorp [2009] NSWADT 44
FILE NUMBER UNDER APPEAL:	073389
DATE OF DECISION UNDER APPEAL:	03/02/2009
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Land and Environment Court Rules 1996 Land and Environment Court Rules 2007 Vexatious Proceedings Act 2008
CASES CITED:	Administrative Decisions Appeal Panel v Director General, Department of Commerce & Ors [2008] NSWCA 140 Attorney-General (Vic) v Wentworth (1988) 14 NSWLR 481 Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27 Chand v RailCorp [2009] NSWADT 44 Chand v State Rail Authority of NSW [2007] AIRC 911 Cianfrano v Director General, Premier’s Department [2006] NSWADT 137 Commissioner of Police, NSW Police v LZ (GD) [2008] NSWADTAP 22 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Kyriacou v Chief Commissioner of State Revenue [2009] NSWADT 175 Lautodis v Casey (1991) 170 CLR 534 Mahenthirarasa v State Rail Authority of NSW (No 2) (2008) 72 NSWLR 273 McGuirk v University of New South Wales [2006] NSWADTAP 39 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Re Williams and Australian Electoral Commission (1995) 21 AAR 467 Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300
REPRESENTATION:	APPELLANT In person RESPONDENT A Johnson, solicitor, Crown Solicitor's Office
ORDERS:	1. Appeal dismissed. 2. Appellant to pay the agency’s costs as per para [66] of these reasons.

REASONS FOR DECISION

1 The appellant, Ms Bimla Chand, is a former employee of the respondent, RailCorp, previously known at the State Rail Authority of New South Wales (the agency). On 6 July 2007 she applied to the agency for access to documents under the Freedom of Information Act 1989 (FOI Act). Ultimately on review, the Tribunal was called on to consider whether the agency made the correct and preferable decision in refusing to process Categories 2, 3 and 4 of the request. The Tribunal affirmed the agency’s decision: see Chand v RailCorp [2009] NSWADT 44 (2 March 2009). Ms Chand now appeals.

2 Ms Chand was employed by the agency between 2000 and 2005. Around 2001 she made internal complaints relating to the conduct of other employees that she considered involved corrupt practices. Later she took leave on medical advice. The agency terminated her employment in 2005 on medical grounds.

3 Ms Chand has brought various proceedings against the agency. She contested her termination in the Australian Industrial Relations Commission. In this Tribunal’s Equal Opportunity Division she sued the agency over alleged sexual harassment by fellow employees during her employment and over alleged victimisation for making those complaints. As to these matters, see Chand v State Rail Authority of NSW [2007] AIRC 911 (21 November 2007), and Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27 (30 April 2009). There is also a reference in the agency’s material to proceedings before the Transport Appeals Board.

4 The litigation mentioned forms part of the background to the request under notice. The full text of the request sought the following:

‘1. A complete unexpurgated copy of all documentation that relates directly to all of the actual and pending costs incurred in actions that are current, and or pending involving State Rail Authority against me in all current and pending external review forums such as the Australian Industrial Relations Commission, Administrative Decisions Tribunal, Anti-Discrimination Board and the NSW Courts regardless of who is attributed as the initiator of each individual process.

2. A complete table of documents that clearly identifies each document for which privilege is claimed, and an explanation as to how each specific document attracts the claim of privilege in actions involving State Rail Authority and any of its antecedent organisations against me, regardless of who is attributed as the initiator of each individual process.

3. Complete and unexpurgated copies of any and all documentation that does not attract privilege and relates directly, or indirectly to current or pending action involving State Rail Authority and any of its antecedent organisations against me regardless of who is attributed as the initiator of each individual process, which includes but is not limited to submissions, reports, e-mails, diary notes, minutes of meetings, or discussions, transcripts of telephone conversations, and other related documents including any advice sought, or given by any internal, or external entity but excludes correspondence sent from and received by me.

4. Any declarations applied by any person or entity in relation to this specific application including all documents and processes identified by the application.’

5 In relation to Category 1 the Tribunal made orders with the consent of the parties at hearing on 18 September 2008. The Tribunal’s reasons cover Category 1 at paras [8]-[19]. As previously noted, the appeal relates to the Tribunal’s decision in connection with Categories 2, 3 and 4. The appellant does raise, in reply to the agency’s costs application, the way the agency dealt with her in relation to Category 1.

Tribunal Reasons

6 In the case of Categories 2 and 4 the Tribunal held that it did not have jurisdiction. In both instances the agency stated that it did not hold documents of the kind to which the request referred. The Tribunal accepted the agency’s assertions. Referring to the ruling of the Court of Appeal in Administrative Decisions Appeal Panel v Director General, Department of Commerce & Ors [2008] NSWCA 140, the Tribunal therefore declined to undertake any further inquiry, in particular an inquiry into whether the agency had engaged in a sufficient search before reaching that conclusion.

7 The agency acknowledged that it had documents falling within Category 3. The agency’s response to the Category 3 request was that so many documents were caught by it that it would involve an unreasonable diversion of the agency’s resources to proceed to process the request. This is a ground for refusal of a request allowed by the Act, see s 25(1)(a1). The full text is as follows:

‘ 25 Refusal of access

(1) An agency may refuse access to a document: …

(a1) if the work involved in dealing with the application for access to the document would, if carried out, substantially and unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions.’

8 However, s 25(5) of the Act provides that this ground for refusal is not to be relied upon without the agency first endeavouring to assist the applicant to amend the application so that the work involved would not give rise to an unreasonable diversion of resources. The agency did this.

9 It suggested to Ms Chand that she attend the agency’s premises at Chippendale and view the documents held by the agency in relation to her current or pending actions (other than privileged material, as she had acknowledged). She took up this offer.

10 The request proceeded to the original determination stage and then the internal review stage.

11 The original determination refused to process the request any further, relying on s 25(1)(a1) (unreasonable diversion of resources). At the internal review stage, however, certain documents were identified and released. They were documents that had passed between the parties or between the parties and the relevant bodies in connection with the AIRC proceedings and the ADT and Anti-Discrimination Board proceedings: see para [30] of the reasons for decision. These documents were inconsequential in the view of Ms Chand, because she had most if not all of these documents; and in her view did not fall within the terms of her request.

12 When the dispute reached the Tribunal, the Tribunal took various steps to encourage a clearer identification by Ms Chand of the documents to which her request related. Ms Chand responded by identifying 15 ‘current’ and ‘pending’ disputes as the subject of her request. In turn the Tribunal remitted the request to the agency for redetermination.

13 The Tribunal noted in its reasons at para [33] that it had been ‘by no means clear’ from the internal review determination whether the unreasonable diversion ground had been abandoned. On redetermination, the agency squarely relied on the unreasonable diversion ground. In the determination the responsible officer, Mr Morton, gave an estimate of the processing time involved.

14 In his Statement of Evidence for the Tribunal proceedings, he developed the point.

15 In its decision, the Tribunal referred to the statement of evidence made by Mr Morton. Mr Morton had identified 31 files held in the Legal Division of the agency as covered by the request as clarified by Ms Chand. The Tribunal noted at para [42] that: ‘On the basis of the number of files and an estimate of each file containing 350 pages, Mr Morton estimated it would take 191 hours or 27 days to process this aspect of Ms Chand’s FOI request.’ Mr Morton went on to say that there would need to be further searches for files not identified by the agency’s computerised document management system, as there may be additional linked paper files or repositories not listed in the computer system. Mr Morton had, for example, located an additional 12 arch lever folders of documents relating to the Chand litigation. The Tribunal went on to refer to further searches that Mr Morton saw as also required.

16 The Tribunal summed up the main features of Mr Morton’s evidence at para [48], and we will not reiterate that here. The Tribunal conceded the strength of some of Ms Chand’s objections to the way Mr Morton had made his estimate: see [49] and [50]. However, it upheld his approach as satisfactory overall. It said at [51]:

‘51 Notwithstanding this [the matters referred to at [49-50]] I find that the respondent has established that the amount of work involved in carrying out this aspect of Ms Chand’s FOI request would ‘substantially and unreasonably’ divert the respondent’s resources away from their use by the respondent in the exercise of its functions and that its decision to refuse Ms Chand access to the documents requested on the grounds set out in section 25(1)(a1) of the FOI Act is the correct and preferred decision. In this regard I agree that the terms of Ms Chand’s FOI request is extremely broad and on the basis of the evidence of Mr Morton I accept that it would be a substantial diversion of the respondent’s resources to deal with Ms Chand’s FOI request. I also find that it would be an unreasonable diversion of those resources having regard to Ms Chand’s unwillingness to co-operate and also her unwillingness to limit the terms of her request. At the hearing, I suggested, through Mr Cianfrano, that Ms Chand having been provided with a copy of the TRIM computerised search, might like to consider limiting her request to specific files or specific documents. No such limit was however forthcoming.’

The Appeal

17 An appeal may be made on a question of law, and by leave of the Appeal Panel, may extend to the merits: see Administrative Decisions Tribunal Act 1997 (ADT Act), ss 112, 113. Ms Chand’s notice of appeal sets out 16 grounds of appeal, and applies for leave to extend the appeal to the merits. The agency filed a reply to the notice of appeal, and submissions.

18 In its submissions the agency raised the question of whether the appeal was in time. It was filed 15 April 2009, more than 28 days after the date of delivery of the decision, 2 March 2009. The matter was addressed at the appeal hearing. Ms Chand explained that after she got the decision by post (though she gives the date as 9 April 2009 it is clear from the surrounding history that she must mean 9 March 2009), she applied for an appeal fee waiver on hardship grounds. She waited then until the Registrar replied. Her application was refused (30 March 2009) and she then tried to renegotiate the decision. Consequently she was late in getting her appeal lodged.

19 As the appeal was now ready to proceed, and given the relative shortness of the delay, leave was granted: ADT Act, s 113(3).

20 At hearing Ms Chand made oral submissions. The agency appeared, represented by Ms Johnson of the Crown Solicitor’s Office, and made oral submissions.

21 The agency, through Ms Johnson, also applied for its costs of the appeal. Ms Chand replied.

Comments on ‘Grounds of Appeal’

22 Ms Chand is a litigant in person, and appears to have drafted the grounds of appeal herself. Many of them involve attacks on the agency or on this Tribunal and its members. For example, ground of appeal no 8 refers to the agency’s ‘long history of corruption’, ground of appeal no 6 asserts that the agency has failed to abide by its common law obligation to behave as a model litigant and ground of appeal no 12 refers to a ‘pro- agency/pro-cover up of corruption bias’ in this Tribunal. Ground of appeal no 15 asserts that the Member responsible for the decision under appeal decided the case in favour of the agency because she wanted to keep ‘the powers that be’ happy so as to ‘keep her job’. Ms Chand regards herself as a wronged public interest whistleblower.

Procedural Objections

23 The grounds of appeal include a number of procedural objections to the Tribunal’s handling of Ms Chand’s case. We will deal with them briefly.

24 In our view the Tribunal followed orthodox procedure in obtaining the material relevant to the determination under notice. It gave directions of the usual kind. The initial obligation to ensure that all relevant material is placed before the Tribunal falls on the agency (see ADT Act s 58). The judgement of what is relevant if for the administrator (s 58(1)(b)). The provision to which Ms Chand refers, ADT Act s 73(5)(b), states that the Tribunal is to ensure that all relevant material is disclosed to the Tribunal. This is a complementary provision. It does not require the Tribunal to launch an inquiry into the adequacy of the agency’s filing: see generally, Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 167-170; and Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (23 September 2009).

25 Normally the agency’s filing will be sufficient to satisfy this requirement. In our view, there was nothing unusual or apparently deficient in the agency’s filing in this case. Ms Chand did not specify what she considered the shortcomings to be. As to the way in which the evidence was presented by the agency, it was sufficient for the agency to provide an affidavit from Mr Morton and to have him made available for cross-examination. The material included statements made by Mr Stirling.

26 As to this material (both the statement of Mr Morton and the statements of Mr Stirling), there is no duty for the Tribunal to adhere strictly to the rules of evidence: see ADT Act, s 73(2). It may have regard to relevant information that appears in the material regardless of whether the author is called and cross examined. It simply needs to exercise caution if the information touches on an area of real contest or dispute between the parties, and ensure that it has regard to the information in a procedurally fair way. In our view, there was nothing problematic in the way in which the Tribunal referred to Mr Stirling’s statements.

27 The Tribunal would not ordinarily interest itself in the issue of whether the agency had behaved as a model litigant: as to which issue see Mahenthirarasa v State Rail Authority of NSW (No 2) (2008) 72 NSWLR 273; and Premier’s Memorandum 97-26 Litigation Involving Government agencies. There would need to be some persuasive material put before it by the applicant to justify a inquiry within the proceedings going to that issue. The issue is most likely to arise in the context of a costs application.

28 Ms Chand is aggrieved over the length of time it took for the agency to deal with Category 1 of her request. The Category 1 issues were resolved by consent orders on the day of hearing, 18 September 2008, fourteen months after her initial application. Category 1 referred to the agency’s costs documents. Had this subject been the only one addressed by the request, it may be that would be some force to her concern. But this was merely one component of a much wider request. Moreover, there is no indication in the decision of the Tribunal below that the issue of non-adherence to the model litigant policy was raised. The reason it is now raised, as we understand Ms Chand’s case, is to assist in dealing with the respondent’s application for costs of the appeal.

29 The grounds of appeal included bias objections directed to Ms Higgins having sat at first instance and now the President sitting on appeal (grounds 12, 15). As to both members, there were broad allegations, essentially to the effect that each of them were affected in their independence of judgement by pro-agency bias. These submissions were not actively pursued at hearing. In our view, there was nothing about these objections that would meet the tests for actual bias or a reasonable apprehension of bias (see further, Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337, esp at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ).

30 There is an objection (ground 14) to the Tribunal not having made a report to the responsible Minister under the FOI Act, s 58 that officers of the agency had failed to exercise in good faith their functions under the FOI Act. No details were given by Ms Chand as to this matter. In any case, it was not a matter that was raised before the Tribunal at first instance.

31 The exercise of the s 58 jurisdiction is a step of great seriousness. It involves the forming of an opinion as to the integrity of an agency officer. Clearly any process with that possibility would, if embarked upon, require the Tribunal to have another inquiry within the inquiry in the nature of a ‘show cause’ hearing. While Ms Chand has a deep sense of grievance over the way she has been dealt with by the agency, there was nothing, as we see it, about this case that should have led the Tribunal to consider actively the question of a s 58 report.

32 In making these observations, we should not be read as necessarily suggesting that a decision at first instance one way or the other relating to the exercise of the s 58 power is an appealable decision for the purposes of the appeal jurisdiction of the Appeal Panel under ss 112 and 113 of the ADT Act.

Categories 2 and 4

33 In our view, the Tribunal dealt correctly with the agency’s determination as it related to Categories 2 and 4 of the request. The very terms of the request suggest that Ms Chand was not seeking documents in existence or possibly in existence at the time of the request. Category 2 is expressed as a request for the generation of a document (‘a complete table of documents that clearly identifies each document for which privilege is claimed’ etc). This, typically, is the kind of document a FOI officer processing a request prepares as part of the determination responding to a request. It is not the proper subject of the FOI request itself. The FOI Act is legislation directed to enabling citizens to scrutinise documents held by government prior to the request being made.

34 The same characteristics are found in the Category 4 request (‘any declarations applied by any person … in relation to this specific application’ etc). Any such documents would be generated as part of the FOI search and retrieval process. They are not a proper subject of the FOI request itself.

35 The Category 2 and 4 requests are anticipatory. Of course once the FOI request is processed, there may well be a request for the documents relating to that process, and the Tribunal sometimes sees applications of that kind.

Category 3

36 The only substantive aspect of the decision that can, in our view, properly be the subject of an appeal is the reasoning as it relates to Category 3.

37 In our view, the Tribunal’s approach was unexceptional, and in accordance with authority.

38 As contemplated by the ADT Act, especially s 63, the Tribunal had regard to relevant material. The relevant material, for this purpose, were documents, correspondence and determinations relating to the request and its processing. Technically, the decision under review became the determination on remittal (see ADT Act, s 65).

39 The Tribunal’s duty was to determine whether the agency had made the correct and preferable decision in the circumstances. In this case the agency’s decision was to decline to process the request, relying on s 25(1)(a1).

40 There is no fixed rule as to when a request ‘would, if carried out, substantially and unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions’.

41 In one case the President (sitting at first instance) suggested that a handling time in excess of forty hours officer time might amount to an unreasonable diversion: Cianfrano v Director General, Premier's Department [2006] NSWADT 137 at [62]. Each case depends on its own particulars. Ms Chand suggests that because RailCorp is a big agency, in terms of budget and personnel, it can perhaps be expected to have a more generous view of what is an unreasonable diversion of resources than might be the case for a very small agency. She also suggests that some of the considerations that moved Mr Morton were irrelevant, and that the Tribunal had been influenced by them.

42 In our view, the Tribunal had well-explained evidence before it from an officer with appropriate knowledge as to the possible impact on the resources of the agency of the full processing of her request. His initial estimate of the number of pages that fell within the boundaries of the request was almost 11,000. The Tribunal accepted this evidence, and, as well, his evidence as to the additional searches and enquiries that would be required.

43 It is plain, in our view, that this was a request that would have had a very significant impact on the agency’s FOI processing resources. The request was a function of the scale of the litigation that had occurred between Ms Chand and the agency.

44 Moreover, it is apparent, from the context of the request, that there would have been numerous exemption claims in relation to such matters as privilege and confidentiality, relating, for example, to advice communications from and between lawyers, and to the drafting and preparation of statements from witnesses or potential witnesses.

45 In our view the decision made by the Tribunal in relation to the agency’s refusal was reasonably open to it to make on the material before it, and we see no reason to disturb it.

46 The agency acknowledged a criticism made by Ms Chand of the Tribunal’s reasons. The Tribunal said at paras [28-29] in connection with the Category 3 documents:

‘28 In his covering letter, Mr Stirling [the FOI officer] advised Ms Chand that she could view the documents she had requested at the respondent’s premises in Chippendale and that she could do so at a time that was convenient to her and the respondent, but not before the beginning of the following week (i.e. not before the being 24 September 2007).

29 It is not clear whether Ms Chand took Mr Stirling up on the invitation, but I have assumed that she did not do so. Instead she made an internal review request asserting that her request was quite reasonable.’

47 The evidence of Ms Chand and Mr Morton (who made the remitted determination) was that she did avail herself of this opportunity. We agree with the submissions of the agency that this was a minor factual error on the part of the Tribunal, and it did not bear in any material way on the Tribunal’s assessment of the ultimate question, whether the correct and preferable decision was to decline to process the request by reference to s 25(1)(a1).

48 In our view, there is no basis for any grant of leave to extend to the merits.

Respondent’s Costs Application

49 The agency has applied for its costs of the appeal. It submits that the appeal is lacking in substance, and amounts to an abuse of process in that it is using the vehicle of FOI proceedings to maintain an attack on the integrity of the agency and the way it dealt with Ms Chand as an employee and in connection with her termination.

50 The usual rule is that each party bears their own cost of proceedings in the Tribunal: ADT Act, s 88. There is a reserve power to award costs, but it is only to be exercised where the Tribunal ‘is satisfied that it is fair to do so having regard to’ a non-exhaustive list of factors set out in s 88(1A). Among the factors are these:

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

- vexatiously conducting the proceedings (a)(vi)

- prolonging unreasonably the time taken to complete the proceedings (b)

- 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 (c)

- the nature and complexity of the proceedings (d)

- any other matter that the Tribunal considers relevant (e).

51 As our reasons indicate, we agree that there is no merit to this appeal. Ms Chand made a very wide request. Ms Chand’s request for documents covered the litigation in which she had been involved. She referred to 15 matters when clarifying her request. In our view it should have been obvious to her that the request would encompass a vast number of formal documents and all the associated background material. It was reasonably likely that she would be met with a diversion of resources objection and a request to modify the scope of the request. For reasons already explained, categories 2 and 4 of her request did not relate to documents already in existence, and on that ground could not be processed within the terms of the Act. These matters were, we consider, clearly dealt with in the reasons of the Tribunal.

52 The costs rule that applies in this Tribunal is similar to the one applied in the Land and Environment Court (LEC) in three of the six classes of proceedings dealt with by that Court. In Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300 the following Rule of the LEC was under notice: ‘No order for the payment of costs will be made in proceedings to which this Rule applies unless the Court considers that the making of a costs order is, in the circumstances of the particular case, fair and reasonable’: Land and Environment Court Rules 1996, Part 16.4. (At that time the Rule did not go on to list particular circumstances which might warrant an order. The present Rule retains the same basic principle but lists circumstances that might justify a costs order, many of which are similar to those in the ADT Act. See now Land and Environment Court Rules 2007, Rule 3.7.)

53 Spigelman CJ (with whom Mason P agreed, and with whom Giles JA agreed as to the matters canvassed below) made a number of observations on the way a costs discretion is to be administered where it operates as an exception to a usual rule that no costs are to be awarded.

54 The Chief Justice noted that it is appropriate, and desirable, for courts and tribunals to develop guidelines or principles to guide the exercise of discretion: at [33]. Such principles or guidelines are not to be treated as rules and must be applied as indicative only, so that full weight is given to the circumstances of a particular case: at [35]. The principles or guidelines are not to be given presumptive or determinative weight: at [45]. If the proceedings have a significant public interest dimension, that may weigh against the making of any order for costs against a citizen party: [65]. On the other hand, ‘[O]ne of the purposes served by exposing parties to litigation to costs orders is to encourage settlement between the parties in the spirit of compromise’: [65]. A costs order is not to be made to punish the unsuccessful party: [72] citing Lautodis v Casey (1991) 170 CLR 534 per McHugh J at 567. (In this Tribunal to similar effect, see McGuirk v University of New South Wales [2006] NSWADTAP 39.) The circumstance that a citizen is taking proceedings to resist the imposition of a liability may be a relevant consideration to the making of an exceptional costs order: at [76]. (In the instant case, the citizen, a restaurant operator, had resisted successfully the issuance of an urgent prevention notice by the regulatory authority.)

55 The Chief Justice referred at [79] specifically to the usual practice of tribunals in dealing with applications for merits review of administrative decisions:

‘In my opinion, the usual position on a merits review that an appeal tribunal stands in the shoes of the primary decision-maker is a significant element in the practice of such tribunals not to exercise such power, if any, to award costs as are conferred upon them. Administrative decision-makers do not award costs. Where a judicial or quasi-judicial function is expressly placed in the position of such a decision-maker then it is more appropriate that it adopt the same general approach.’

56 This Tribunal sitting in its merits review jurisdiction at first instance is an appeal tribunal of the kind to which the above dictum refers. In our view, it does not follow that a similarly generous stance should apply to internal appeals to the upper tier of the external merits review tribunal.

57 Appeals involve a second set of proceedings in the Tribunal and put the successful party below to further cost and expense.

58 The agency’s submission is that Ms Chand’s submissions are so spurious as to have no tenable basis in fact or law. The agency submits that Ms Chand raises entirely irrelevant and unfounded issues of corruption on the part of RailCorp (grounds 7, 8, 13 and 14) which suggest that her purpose in bringing the appeal is to cast slurs on her former employer, rather than to genuinely agitate legal matters of concern. The agency submitted that Ms Chand has attempted to abuse the processes of the Tribunal. The agency also asserted that Ms Chand had repeatedly failed to comply with the President’s directions in relation to the filing of submissions.

59 The agency drew attention at hearing to observations made recently by Handley DP in Kyriacou v Chief Commissioner of State Revenue [2009] NSWADT 175 especially his discussion of the meaning to be accorded to the term ‘vexatious’ when used in relation to the conduct of proceedings. It is useful to commence with what the learned Deputy President said at [38] and then go to [42] and ff:

‘38 I agree that the new section 88 confers a broad discretion on the Tribunal in terms of the relevant matters it may take into account in the exercise of its power to award costs if satisfied that it is fair to do so. Nevertheless, it must be borne in mind that the primary principle stated in section 88(1) is that each party to proceedings before the Tribunal should bear that party’s own costs. An award of costs is an exception to this general principle. It therefore remains the normal expectation that the parties in Tribunal proceedings should bear their own costs. To that extent the position in proceedings before the Tribunal is different from that in adversarial proceedings before the courts where the successful party can ordinarily expect an order for costs.

42 With regard to the second ground, the allegation of vexatious conduct, as the parties are aware, the term ‘vexatious’ is not defined in the ADT Act. I note the discussion of the meaning of ‘vexatious’ in, for example, Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 (see Deane J at 247: “‘vexatious’ should be understood as meaning productive of serious and unjustified trouble and harassment”), Commissioner of Police, NSW Police v LZ (GD) [2008] NSWADTAP 22, and the recently enacted Vexatious Proceedings Act 2008, where, at section 6, the following (non-exclusive) definition appears:

6 Meaning of " vexatious proceedings"

In this Act, " vexatious proceedings" includes:

(a) proceedings that are an abuse of the process of a court or tribunal, and

(b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and

(c) proceedings instituted or pursued without reasonable ground, and

(d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose. The proceedings were not "productive of serious and unjustified trouble and harassment"

43 I also note the decision in Falconbridge , where, at [11], VCAT referred to the need:

“to produce evidence of motive other than the fact that the parties are in dispute and that the applicant has taken advantage of proceedings available under relevant legislation which are open to the applicant in the circumstances.”

44 The requirement for there to be ‘intention’ has previously been recognised in Attorney-General (Vic) v Wentworth (1988) 14 NSWLR 481 at 491, and see also Re Williams and Australian Electoral Commission (1995) 21 AAR 467.’

60 The agency also noted Handley DP’s reference at [48] to the impact of appeals on the public purse.

61 In her submissions in reply filed 8 October 2009 Ms Chand refers to the history of the handling of her request by the agency, and makes various criticisms of the agency’s conduct, in particular its slowness in reaching the point of the releases made in connection with the Category 1 request. She also referred various aspects of the way the agency dealt with her before the Tribunal, including its making of a costs application on that occasion. The agency advised that it had made an application but subsequently not pressed it.

Assessment

62 As noted, the present application for costs goes to the reasonableness and appropriateness of her contesting the primary Tribunal’s decision, and putting the agency to the inconvenience and cost in time and resources of defending her appeal. Ms Chand’s written and oral submissions failed to address this point. Instead at hearing, she again referred to the history of the agency’s dealings with her, including in relation to this request.

63 We recognise that the Tribunal, whether at first instance or at appeal, should not lightly accede to agency applications for their costs of responding to merits review applications brought by aggrieved citizens.

64 In our view there are, in this case, a combination of circumstances which justify the making of a limited costs order in favour of the agency. First, this is an appeal, not a first instance hearing, and involves a second exposure to the expenses of litigation in the Tribunal for the successful party. The appropriate observations made by Handley DP at first instance in Kyriacou are not applicable to the same degree, in our opinion, to the bringing of internal appeals. Secondly, for the reasons we have given, there was no tenable basis in fact or law for this appeal. Thirdly, the appeal included allegations of misconduct and corruption without any credible evidence or material being advanced to support them. Fourthly, the second and third factors are sufficient, we consider, to conclude that the appeal was vexatious in the sense that it was an abuse of the processes of the Tribunal.

65 We have not given any great weight to the appellant’s non-compliances with the timetable. They did not, we think, prejudice the agency in any great way, or hamper its ability to make its case at hearing. Further, we recognise that this is a case where the appellant has represented herself. She does not appear to have had any professional legal assistance. She said that she had been assisted by members of a body called the FOI Association, and mentioned in that regard two persons who have been frequent litigants in this Tribunal, Mr Cianfrano and Mr Saggers.

66 We do not think that the result should therefore be that the appellant be the subject of a general order that she pay the respondent’s costs of the appeal. We note that the agency, to its credit, made economical submissions in reply. The agency’s reply is itself concisely expressed, as are the agency’s further submissions. In our view a sufficient order is that the appellant pay the agency’s costs of appearance on the day of hearing (i.e. the professional fees for the day of Ms Johnson).