Charteris v General Manager, Leichhardt Municipal Council (No2) (GD)

[2001] NSWADTAP 39

Appeal Panel

CITATION:	Charteris -v- General Manager, Leichhardt Municipal Council (No. 2) (GD) [2001] NSWADTAP 39
PARTIES:	APPELLANT Geoffrey Ivan Charteris RESPONDENT General Manager, Leichhardt Municipal Council
FILE NUMBER:	009030
HEARING DATES:	02/07/2001
SUBMISSIONS CLOSED:	10/26/2001
DATE OF DECISION:	11/29/2001
DECISION UNDER APPEAL:	Charteris (No. 2) -v- General Manager, Leichhardt Municipal Council [2000] NSWADT 109
BEFORE:	O'Connor K - DCJ (President); Goode P - Judicial Member; Mapperson K - Member
CATCHWORDS:	relevant/irrelevant considerations - unreasonableness
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	993259
DATE OF DECISION UNDER APPEAL:	08/11/2000
LEGISLATION CITED:	Administrative Appeals Tribunal Act 1975 Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Charteris (No. 2) v General Manager, Leichhardt Municipal Council [2000] NSWADT 109 Charteris v General Manager, Leichhardt Municipal Council [2000] NSWADT 81 Charteris v General Manager, Leichhardt Municipal Council [2001] NSWADTAP 12 Raethel v Director-General, Department of Education and Training [2000] NSWADT 56 Mangoplah Pastoral Company Pty Ltd v Great Southern Energy [2000] NSWADT 4 Holpitt Pty Ltd v Varimu Pty Ltd & Others (1991) 103 ALR 684 Citadin Pty Ltd (No 2) v Eddie Azzi Australia Pty Ltd & General Pants Co Pty Ltd (RLD) [2001] NSWADTAP 31 Re the Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 R v Gold Coast City Council; ex p Rayson Pty Ltd [1971] QWN 13 (FC, SCQ) South East Queensland Electricity Board v Australian Telecommunications Commission (Fed Ct, Pincus J, 10 February 1989, unreported) Latoudis v Casey (1990) 170 CLR 534
REPRESENTATION:	APPELLANT P Singleton, barrister RESPONDENT C Ronalds, barrister
ORDERS:	Appeal dismissed.

1 This appeal relates to a decision by the General Division of the Tribunal (the Tribunal) to refuse the appellant’s application for costs in proceedings under the Freedom of Information Act 1989 (the FOI Act) where he had been partly successful in obtaining access to documents over which the respondent agency had claimed exemptions. The costs decision under consideration in this appeal is Charteris (No. 2) v General Manager, Leichhardt Municipal Council [2000] NSWADT 109 (11 August 2000).

2 The principal application was the subject of an earlier decision Charteris v General Manager, LeichhardtMunicipal Council [2000] NSWADT 81; itself the subject of an appeal resulting in some additional documents being ordered to be disclosed: Charteris v General Manager, Leichhardt Municipal Council [2001] NSWADTAP 12. The exemption principally in issue was the legal professional privilege exemption. Ultimately of the 70 documents refused by the agency, the agency’s decision in respect of 61 was affirmed, with 9 ordered to be disclosed (6 by the General Division, 3 more by the Appeal Panel).

3 The Tribunal in the decision now under appeal rejected the appellant’s application for costs. The general rule in proceedings before the Tribunal is that each party bears their own costs, unless ‘special circumstances’ for an award of costs can be established. The Tribunal was not satisfied that there were sufficient special circumstances in this case to warrant such an order.

4 The costs power is found in s 88 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act):

‘ 88. Costs
(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 appeal is made pursuant to s 113 of the Tribunal Act. There is a right of appeal on a ‘question of law’ and, by leave of the Appeal Panel, the appeal may be extended to the merits.

6 The appellant’s notice of appeal claims that:

‘The Tribunal erred in law in failing to find that there were special circumstances [which?] warranted an order that the respondent pay the appellant’s costs of the proceedings.
Alternatively, the Tribunal erred in law in failing to find that there were special circumstances [which?] warranted an order that the respondent pay the applicant’s costs of the proceedings on 5 and 6 June 2000.’
(There was also an application for leave to extend the appeal to the merits.)

7 It can be seen that the notice does not identify any specific error in relation to the Tribunal’s interpretation or application of the ‘special circumstances’ criterion.

8 The parties referred in the written submissions prepared for the main appeal to the costs issues: for the appellant dated 13 November 2000; and for the respondent dated 24 November 2000. The hearing of this appeal occurred on 2 July 2001. There were further short written submissions made, with leave, by the appellant dated 24 October 2001. The respondent has chosen not to reply.

9 The appellant essentially reiterated to the Appeal Panel the case that he had made to the Tribunal. The appellant focussed on the way that he had been dealt with by the agency over his application. He pointed to a number of failings, as he saw them, on the part of the agency in the procedures it followed. He contended that he was forced to take proceedings in the Tribunal in order to get satisfaction.

10 Accordingly he argued that he should be compensated by way of an order for costs for the professional costs and other expenses incurred by him in dealing with the agency over the access request.

11 If the Tribunal did not accede to that application, he contended that he should at least be compensated in respect of the costs incurred in relation to the conduct of the second and third days of hearing before the Tribunal (5 and 6 June 2000), which he said were wholly avoidable costs occasioned by the conduct of the agency.


Tribunal Decision
12 The reasons for the decision under appeal are short, and it is convenient to set out in full the main observations at [6] to [11]:
‘6 I accept the view expressed in Raethel [ Raethel v Director-General, Department of Education and Training [2000] NSWADT 56] at [56-59] 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 inquiry into the way in which the agency dealt with the applicant". However, as that case accepts, 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 [ Mangoplah Pastoral Company Pty Ltd v Great Southern Energy [2000] NSWADT 4] at [9]: "in the context of a costs application under s 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".

7 The applicant's submission seeking a "full" costs order identified the special circumstance as being that the applicant "had no choice but to commence proceedings in order to obtain due process" due to "the respondent's failure to meet its obligations" under the FOI Act. The submission was elaborated with reference to the history of the FOI request. The applicant complained that the respondent's FOI officer gave insufficient advice as to how to make a request, including as to a fee payable, and that there were delays and inadequacies in the respondent's responses to his request, leading to protracted correspondence and numerous visits to the Council offices to inspect documents. There was further delay in responding to his request for an extension of time for an internal review, and the present application to the Tribunal was brought before an internal review was completed. A particular complaint is that the applicant was never given a complete list of the documents claimed to be exempt prior to his reaching the Tribunal, and did not receive sufficiently particularised reasons for the claim for exemption.

8 I have considered all the applicant's submissions, but they do not persuade me that these circumstances warrant an order that the respondent pay his costs of the proceedings. Notwithstanding a disclaimer in the submissions, the applicant's criticisms essentially locate defects in the respondent's procedures prior to and not "incidental to" the present proceedings. I regard these criticisms as of little relevance to a decision under s 88(1), and consider that they fail to take account of the difficulties facing the respondent's officers resulting from the width, informality and vagueness of the applicant's FOI request and its intermingling with the applicant's other concerns. Although the evidence may show a less than perfect history leading to the commencement of the present proceedings, in my opinion it does not provide special circumstances for indemnifying the applicant against his expenses in pursing the proceedings in this Tribunal through three hearing days.

9 More relevantly, I have found nothing in how the Council conducted itself in the course of the proceedings in the Tribunal which amounts in my opinion to "special circumstances" which warrant an award of the costs of the proceedings against it. The outcome of the proceedings points to the contrary, since in relation to the bulk of the documents I have upheld the Council's claim for legal professional privilege. The foundation of that claim must always have been apparent to the applicant, since it concerned litigation to which the applicant was a party and the taking of legal advice in response to opinions tendered by the applicant. In this context, I do not consider that the absence of an itemised list of documents prior to the present proceedings as a significant omission on the respondent's part, and certainly not as providing a "special circumstance" warranting an award of costs. I consider that the respondent's failure to follow some of the formalities of s 28 of the FOI Act, while regrettable, does not in the present circumstances warrant an order that it should pay the applicant's costs of the proceedings. In essence, I do not accept that these omissions "compelled" the applicant to commence and pursue the present proceedings, or, at least, to do so in circumstances where he should receive an exceptional indemnity for his costs.

10 The applicant's alternative application was for an award of his costs for the adjourned hearing on 5 and 6 of June 2000. I can find no "special circumstances" warranting such an award against the respondent. There are many reasons for this, but the clearest, as the transcript of proceedings on 5 April 2000 should show, is that the adjournment on that day was inevitable and necessary due to the under-estimation of the length of hearing at half a day and the consequent unavailability of a hearing room in the afternoon of 5 April 2000. In this respect, I note that this estimate was expressly adopted by the applicant's present counsel on page 7 of the transcript of the directions hearing of 17 December 1999. I do not consider that the ultimate length of the hearing can be attributed to any conduct on the part of the respondent for which it should incur an award of costs.

11 I therefore refuse the application for costs.’

Meaning of ‘Special Circumstances’ in s 88
13 Since the above decision was handed down a three-member panel of the General Division of the Tribunal, as constituted under the Local Government Act , has had occasion to consider the meaning to be given to ‘special circumstances’ for the purpose of s 88 in Brooks Maher v Cheung [2001] NSWADT 18:
‘11 What constitutes "special circumstances "? In Mangoplah Pastoral Company Pty Ltd v Great Southern Energy (No 2) [2000] NSW ADT 4 (11 January 2000), the Tribunal made a comment in relation to an application for costs which was quoted by the parties to these proceedings. In Mangoplah , the applicant was partially successful in an application for access to documents under the Freedom of Information Act 1989 and applied for an award of costs against the agency. The Tribunal commented at para 5, that:
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, ie 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.
12 "Special" is given 17 meanings in the Macquarie Dictionary, Third edition, The Macquarie Library. One meaning is "distinguished or different from what is ordinary: a special occasion." Another meaning is "extraordinary; exceptional; exceptional in amount or degree especial: special importance." In interpreting the term "special circumstances" in a different context, the Federal Court in Holpitt Pty Ltd v Varimu Pty Ltd & Others (1991) 103 ALR 684 preferred the former definition:
In my opinion, the court's duty in an application of this kind is to consider whether the applicant has shown some circumstances which takes the matter out of the ordinary course. . .
13 The application in that case related to whether the court should exercise its discretion to have documents produced in one set of proceedings, available for use in other proceedings.

14 We are satisfied that the plain meaning of "special circumstances" is circumstances which are out of the ordinary, without having to be extraordinary or exceptional. But "special circumstances" alone are not sufficient. Under s 88(1), the special circumstances must "warrant an award of costs." The circumstances which would or would not "warrant an award of costs" cannot be exhaustively listed. However where one party causes another party to incur costs because of unreasonable delays, or by making misconceived, frivolous, vexatious or insubstantial procedural or substantive applications, an award of costs may be warranted.’

14 We agree with those observations.

15 The Appeal Panel has recently considered the question of the award of costs against appellants in unsuccessful appeals in retail leases disputes, holding that the failure to succeed on appeal may amount to a ‘special circumstance’ in the case of retail leases disputes: Citadin Pty Ltd (No 2) v Eddie Azzi Australia Pty Ltd & General Pants Co Pty Ltd (RLD) [2001] NSWADTAP 31.

16 In that case the Appeal Panel referred to s 109 of the Victorian Civil and Administrative Tribunal Act 1997 as providing a useful list of factors that might constitute ‘special circumstances’. Section 109 provides:

‘ 109. Power to award costs
(1) Subject to this Division, each party is to bear their own costs in the proceeding.
(2) At any time, the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding.
(3) The Tribunal may make an order under sub-section (2) only if satisfied that it is fair to do so, having regard to-
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as-
(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;
(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;
(iii) asking for an adjournment as a result of (i) or (ii);
(iv) causing an adjournment;
(v) attempting to deceive another party or the Tribunal;
(vi) vexatiously conducting the proceeding;
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;
(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 proceeding;
(e) any other matter the Tribunal considers relevant.
(4) If the Tribunal considers that the representative of a party, rather than the party, is responsible for conduct described in sub-section (3)(a) or (b), the Tribunal may order that the representative in his or her own capacity compensate another party for any costs incurred unnecessarily.
(5) Before making an order under sub-section (4), the Tribunal must give the representative a reasonable opportunity to be heard.
(6) If the Tribunal makes an order for costs before the end of a proceeding, the Tribunal may require that the order be complied with before it continues with the proceeding.’
Assessment
17 It will be seen that in its reasons the Tribunal appraised the conduct of both parties. It acknowledged that the agency had failed to comply with the requirements of s 28 of the FOI Act in a number of respects. It made some other negative observations in relation to the agency’s general conduct of the matter prior to the matter reaching the Tribunal. It also made adverse comments in relation to the appellant’s conduct, especially in relation to the adequacy of the original application. It noted that the FOI dispute was not the only one between the parties. The appellant had taken legal proceedings against the agency, and many of the documents sought by the FOI Act related to those proceedings. The appellant is an experienced barrister who could be expected to have a degree of familiarity with the agency’s need for advice and the likelihood that there would be documents to which a proper claim of legal professional privilege might attach. The Tribunal clearly saw this as a case where both parties’ conduct left something to be desired.

18 As to the meaning of ‘special circumstances’ the Tribunal expressed caution as to allowing a costs application to become a vehicle for undertaking a general review of the conduct of the agency towards an applicant. It is plain that the Tribunal saw ‘special circumstances’ warranting intervention as circumstances ordinarily being related to the conduct of the litigation. In that regard it expressly stated that it was satisfied that the agency had conducted itself properly in the litigation, and that the second and third days of hearing were not occasioned by any default of the agency.

19 The appellant takes issue with the Tribunal’s characterisation of the agency’s conduct in dealing with the FOI application as merely involving ‘failure to follow some of the formalities of s 28 of the FOI Act.’ The appellant argues that the Tribunal erred in this conclusion, and asserts that the proper construction of the circumstances was that there was ‘no’ compliance at all with the Act in respect of important requirements, including the statement of reasons requirement (FOI Act, s 28(2)(e)(ii)), non-designation of the officer responsible for the decision (s 28(2)(g)(i)) and the date of the original determination (s 28(2)(a)).

20 The appellant presented a chronology commencing with the appellant’s original letter of request on 7 May 1999. The chronology lists the various events where the appellant says he had to press the agency to respond properly to the request, including, as he presents it, being forced to lodge proceedings in the Tribunal in order to get an order from the Tribunal that the agency finalise his internal review application to the agency. The appellant listed 15 instances of alleged inadequate or outright non-compliance.

21 One of the criticisms of the agency’s conduct made by the appellant concerned what he saw as the terse terms of the letters of refusal, relying on legal professional privilege. In our decision in relation to the main appeal we noted that a relatively terse reference to a ground of exemption may be less significant where the recipient of the communication is an experienced legal practitioner, as is the case here, familiar with the technical meaning of the term. That does not excuse default on the part of the agency, but may make it less significant. This circumstance was before the Tribunal. It was embraced in its overall assessment of the agency’s conduct.

22 This is not the first time that an aggrieved applicant has sought to have the Tribunal focus on the pre-litigation conduct of the agency in dealing with the matter before it reached the Tribunal. We reiterate the view expressed by the President sitting at first instance that caution must be observed in allowing costs applications to become a vehicle for the general scrutiny of the conduct of one of the parties prior to the commencement of the litigation: Raethel v Director-General, Department of Education and Training [2000] NSWADT 56.

23 The appellant referred to Raethel. The difference between the application in that case and the one made on this occasion, according to counsel for the appellant, was that Raethel involved allegations of obstructionist behaviour rather than outright instances of non-compliance with statutory requirements. We do not regard that as a crucial distinction, and, as previously stated, are satisfied that the Tribunal had regard to the appellant’s submissions as to the degree of non-compliance.

24 We are satisfied from scrutiny of the transcript below and the reasons for decision that the Tribunal did take proper account of these submissions, and simply engaged in the usual weighing exercise. The Tribunal’s generalised reference to non-compliance with s 28 forms part of a wider discussion as to conduct of both parties.

25 It is not necessary that the Tribunal undertake a didactic, itemised examination of each of the concerns raised by one party as to the conduct of the other party. It is plain that the Tribunal thought that an important factor militating against the force of the appellant’s concerns was that he met with little success in his application. It was not therefore a case of an agency unreasonably relying on an exemption and unfairly forcing the applicant to litigate to establish his or her claims.

26 On the other hand, as acknowledged in Raethel and in the decision under appeal, there may be circumstances where it is appropriate to have regard to the pre-litigation conduct of one of the parties. We agree with the comments of McHugh J in Re the Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624-625, albeit made in relation to cases disposed of without hearing (citations omitted):

‘In some cases ... the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence litigation.’
27 McHugh J referred to two cases where such an order was made: R v Gold Coast City Council; ex p Rayson Pty Ltd [1971] QWN 13 (FC, SCQ) and South East Queensland Electricity Board v Australian Telecommunications Commission (Fed Ct, Pincus J, 10 February 1989, unreported).

28 In Lai Qin’s case the visa applicant sought costs from the Minister. Soon after she had commenced proceedings in the High Court, the Minister granted the protection visa which previously he had refused (a refusal affirmed by the Refugee Review Tribunal).

29 The High Court proceedings were commenced on 15 January 1996. On 22 January 1996 the Minister, after reconsideration, granted the visa. The applicant sought costs on the basis of what she submitted was misconduct by the Department and the Minister. It was agreed that the Department knew as at 11 January 1996 that the Minister was engaged in a process of reconsideration. Had she been promptly informed, she submitted that she would have avoided the costs involved in commencing the proceedings. She was informed that a reconsideration was occurring the day after filing, 16 January. The Court (McHugh J) rejected the application.

30 McHugh J at 625 saw the ‘critical question’ as being:

‘whether or not the prosecutrix acted reasonably in bringing these proceedings and whether the respondent acted so unreasonably in not informing the prosecutrix that an application to review the decision to refuse the visa was being considered that it would be proper for the Minister to pay the whole or part of the cost of the proceedings.’
31 McHugh J doubted that the failure to inform during the 4 day period between 11 and 15 January 1996 was a legally relevant factor. He said even if it was, ‘the conduct of the Minister and his advisers seems to have been quite reasonable’: at 628.

32 McHugh J said at 624:

‘In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs: Latoudis v Casey (1990) 170 CLR 534. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order: Latoudis at 543, 566-568. When there has been no hearing on the merits ... a court is necessarily deprived of the factor that usually determines whether or how to make a costs order.’
33 While the starting point under the Tribunal Act is different in that costs awards should only be made where there are ‘special circumstances’, the Tribunal in this instance sought to inform itself in the usual way, by having regard to the hearing on the merits. The appellant met with little success; the agency conducted itself properly at the hearing. The appellant does not cavil with the latter conclusion, as it relates to the first day of hearing. In a costs-follow-the-event environment, in these circumstances an order may well have been made against the appellant.

34 As to the alternative application (costs for two of the hearing days), the appellant’s chronology referred to the events that gave rise to a second and third day of hearing.

35 The appellant referred to the original estimate as to the length of the hearing (given 7 December 2000, half a day); said that the agency later identified additional grounds of exemption and additional documents relevant to the application; said that there were issues as to whether the respondent had conducted its case properly in respect of the onus of proof; and that as a consequence there was a need to extend the hearing to days beyond the original listed day (5 April 2000) so as to hear submissions affecting the additional material and hear evidence from the senior council officer, Ms Lyons.

36 Party conduct which results in avoidable costs being incurred by the other party is a special circumstance that may give rise to a costs award against the non-compliant party. In the Tribunal, events such as non-compliance with directions, failure to produce witnesses giving rise to requests for adjournments, and significant late variations to cases (as alleged here) may give rise to costs orders against the party in default.

37 Tribunals and courts routinely consider applications from the party not in default based on such concerns. That occurred in this case.

38 We can not discern any error in the way the Tribunal went about considering the application as it related to costs associated with the days of 5 and 6 June. As noted in para [11] the matter was examined and expressly dealt with by the Tribunal, which itself had presided in the matter.


Policy Issues
39 The appellant referred to two policy factors which he felt supported the making of costs awards to successful FOI access applicants: (1) the desirability of encouraging agencies to comply promptly and strictly with the statutory requirements of the legislation; and (2) the value that active use of costs order powers would have in enabling access applicants to engage lawyers to present their case.

40 As to (1), the FOI Act provides some sanctions. The basic sanctions are these. If an agency fails to determine a request within 21 days, the general rule is that the agency will be ‘taken to have determined the application by refusing access to the document to which it relates’: s 24(2). A section 24 determination may be the subject of an application for review to the Tribunal: s 53(1). More generally, the ‘conduct of any person in relation to a determination made by an agency under this Act may be the subject of a complaint, and may 'be investigated by the Ombudsman’: s 52(1).

41 As to (2) it was submitted that if costs orders are made virtually impossible to obtain, the Tribunal will cease to be available to citizens who wish to be represented.

42 It was contended that where a citizen retains legal counsel, the Tribunal and the respondent benefit significantly in the saving of time and resources as compared to how the case might progress if run by a self-representing litigant because of the skills that are brought to bear on the case. The argument was, as we understood it, that legal representation was itself a special circumstance that warranted an order for costs if the case was successful.

43 A similar submission was considered by McHugh J in Lai Qin at 628-629:

‘Mr McCarthy [counsel for Lai Qin] contended that the fact that the prosecutrix was legally aided was a further ground for exercising a discretion to make an order for costs. He said that public moneys were being expended on her application. But this is a totally irrelevant factor in determining the issue. The fact that the prosecutrix was being legally aided does not put her in any better position for an order for costs than if she was paying her own costs. As I pointed out in argument, it would be a strange result if, in addition to the prosecutrix, there was another applicant in the proceedings who was paying her own legal fees and the court could make an order in favour of Mr McCarthy's client but not in favour of the privately funded applicant. In my view, the fact that the prosecutrix is legally aided does not bear on the issue.’
44 (In any event we note that the present case is not the typical case of a self-represented applicant without legal skills facing the alternative of going it alone. As previously noted, the applicant is a barrister who has engaged another member of counsel to appear.)

45 The submission that the need for legal representation is itself a ‘special circumstance’ would, if accepted as a general proposition, lead to the reintroduction of the costs-follow-the event rule; with obvious financial risks for individuals who are unsuccessful in disputes with represented agencies and businesses.

46 It may be that the appellant’s submission had in mind a one-way costs rule, that is citizens who ‘win’ and who, reasonably, were legally represented, should receive a costs award, with respondent agencies and corporations who ‘win’ ordinarily not receiving costs (unless there are special circumstances of some kind that go beyond the mere fact of having been legally represented).

47 Such one-way rules are not unknown. If that had been the intention of the legislature, it would, we consider, have spelt that out.

48 In that regard we note that the Commonwealth Parliament in the lead-up to the Freedom of Information Act 1982 did give consideration to such a rule. The Senate Standing Committee on Legal and Constitutional Affairs in its report on the Freedom of Information Bill 1998 (AGPS 1979) noted that the official inquiries that led to citizens being given the right to make applications for review of Commonwealth agency administrative decisions had in fact recommended that the Administrative Appeals Tribunal be empowered to award costs in favour of an aggrieved person where the Tribunal considered that the application for review ‘was reasonably justified’: [30.6] at 310. The Senate Committee noted that despite this the Administrative Appeals Tribunal Act 1975 made no general provision for such awards of costs - a position which remains today.

49 Nonetheless the Senate Committee considered that a special case could be made in relation to FOI. It noted that there were ‘compelling reasons why costs should be awarded in favour of the aggrieved individual in the specific case of freedom of information actions before the Administrative Appeals Tribunal’: [30.10] at 311. Those reasons had to do with securing the democratic objectives which FOI legislation serves. But despite those observations the Committee made a constrained set of recommendations as to the circumstances in which costs might be awarded, recommendations not going as far as the earlier official inquiries.

50 It did not recommend giving the Tribunal a general power to award costs to successful applicants. It saw the legal aid issue as being resolved by having the Ombudsman ordinarily represent the applicant. Under its proposals all disappointed applicants would first go to the Ombudsman, and the Ombudsman would then consider providing skilled representation. Where the Ombudsman did not represent the applicant before the Tribunal, and the applicant ‘substantially prevails in his case’, it recommended that the Tribunal be given a discretion to recommend to the Attorney General that costs be awarded to the applicant.

51 As to the criteria that should govern the exercise of such a discretion, it recommended that the matters to which the Tribunal should have regard should include: (a) the public benefit; (b) the possible commercial benefit to the applicant; and (c) the reasonableness of the agency’s action in withholding the document or (in reverse-FOI action) deciding to release it. (See generally, [30.14] - [30.17] at 312.)

52 These recommendations were substantially adopted, in s 66 of the Commonwealth Freedom of Information Act 1982:

‘ 66. Tribunal may make recommendation that costs be available in certain circumstances
(1) Where:
(a) a person makes application to the Tribunal under section 55 for review of a decision constituting the action to which the complaint relates; and
(b) the person is successful, or substantially successful, in his or her application for review;
the Tribunal may, in its discretion, recommend to the Attorney-General that the costs of the applicant in relation to the proceedings be paid by the Commonwealth.
(2) Without limiting the generality of the matters to which the Tribunal may have regard in deciding whether to make a recommendation under subsection (1), the Tribunal shall have regard to:
(a) the question whether payment of the costs or any part of the costs would cause financial hardship to the applicant;
(b) the question whether the decision of the Tribunal on review will be of benefit to the general public;
(c) the question whether the decision of the Tribunal on review will be of commercial benefit to the person making application to the Tribunal; and
(d) the reasonableness of the decision reviewed by the Tribunal.
(3) The Attorney-General may, pursuant to a recommendation of the Tribunal under subsection (1), authorize the payment of costs to an applicant.’
53 The various State FOI Acts are generally traceable to the original Commonwealth legislation. There is no equivalent provision in the New South Wales Act. The New South Wales Parliament chose, as we see it, not to incorporate this feature into New South Wales FOI law. It would be inappropriate for the Tribunal to use its ‘special circumstances’ discretion as a vehicle for achieving a policy outcome not adopted by the Parliament.

Conclusion
54 The Tribunal took into account a range of considerations relevant to a judgment as to whether a ‘special circumstances’ costs award should be made. Its decision did not, we consider, erroneously take account of irrelevant considerations, ignore relevant considerations; nor was it manifestly unreasonable. There is no error of law identified.

55 It follows that the respondent’s application for leave to extend to the merits is refused.


Order
Appeal dismissed.