Collins v Indigenous Business Australia

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 505

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1091

GENERAL ADMINISTRATIVE DIVISION		)
Re		SHIRLEY COLLINS

Applicant

And INDIGENOUS BUSINESS AUSTRLIA

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date18 June 2008

PlaceBrisbane

Decision The Tribunal declines to recommend that costs be awarded to the applicant in respect of her application.

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SENIOR MEMBER

7.      In one sense, the details of the claim are irrelevant for present purposes. Where the Tribunal decides to make a recommendation with respect to costs, it would not ordinarily refer to a specific sum. The respondent pointed out it is a matter for the Attorney-General to determine whether costs are ultimately paid, and in what amount. The Tribunal does not play a role in determining the quantum of any amount that may be awarded: see Re Rae and Department of Arts, Heritage and Environment [1985] AATA 112; (1985) 7 ALD 449 at 454 per DP Todd.

The matters that must be considered under s 66(2)

8. I shall address each of the considerations referred to in s 66(2).

(a) Whether payment of the costs or any part of the costs would cause financial hardship to the applicant

9.      The Tribunal would ordinarily expect to see detailed evidence describing the applicant’s financial circumstances. The respondent pointed out in its written submissions that the applicant has not provided any evidence beyond a series of assertions that suggest she is in straitened financial circumstances. The respondent says it is unclear whether Mrs Collins will be unable to meet her own costs out of her own resources. The respondent adds that some of those costs are in any event unusual: it suggests that costs would not ordinarily be awarded in respect of a representative who was not legally qualified: cf Re Toomer and Department of Primary Industries and Energy [1991] AATA 31; (1991) 22 ALD 164. While it might be unusual to make such a recommendation, I do not accept the Tribunal is unable to make it if the circumstances suggest there was a good reason for utilising the skills of a particular representative who did not possess legal qualifications. In this case, Mr Percival is a chartered accountant. The underlying dispute between Mrs Collins and the respondent appears to have a commercial dimension, which might make Mr Percival’s role important. However, it must also be acknowledged that Mr Percival had to expend time acquainting himself with information about the law and the FOI process that a qualified lawyer would be able to assimilate with greater ease and less expense.

10.     I am unable to be satisfied at this point that the applicant has experienced, or will experience, any financial hardship. Mr Percival’s written submissions of 29 January 2008 refer to the applicant losing her house and closing her business. These things might provide a basis for a claim of financial hardship, but I have not been provided with additional evidence on the issue.

(b)  Whether…