Doyle v NSW Maritime (No 2)

[2012] NSWADT 55

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Doyle v NSW Maritime (No 2) [2012] NSWADT 55
Decision date:	27 March 2012
Jurisdiction:	General Division
Before:	S Higgins, Deputy President
Decision:	The respondent's application for costs is refused.
Catchwords:	Costs
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 (repealed) Maritime Services Act 1998 Motor Dealers Act 1974 Privacy and Personal Information Protection Act 1998
Cases Cited:	AT V Commissioner of Police, NSW [2010] NSWCA 131 Boutros v Director-General, Department of Finance and Services (No. 2) (costs) (GD) [2012] NSWADTAP 7 Doyle v NSW Maritime [2011] NSWADT 113 Miriani v Commissioner for Fair Trading [2005] NSWADT 99
Category:	Costs
Parties:	Dr David Doyle (Applicant) NSW Maritime (Respondent)
Representation:	Dr Doyle (Applicant in person) Crown Solicitor's Office (Respondent)
File Number(s):	103118

REasons for decision

Introduction

1. GENERAL DIVISION: S Higgins, Deputy President. The applicant, Dr Doyle, made an application seeking review of a decision of the respondent agency, NSW Maritime. It was Dr Doyle's contention that the respondent had made a decision, under section 42 of the Marine Safety Act 1998 (the MS Act), in regard to conditions on the marine safety licences of the boat share vessels owned by Blue Sky Boating. That is, Dr Doyle contended that the respondent, contrary its boat share guidelines, had decided not to make these licences subject to the conditions set out in the guidelines and had instead issued the licences subject to conditions, which failed to address public safety issues. Dr Doyle is the holder of a non-voting Unit in a boat share trust and as a holder of a Unit is entitled to make a booking and use a Blue Sky Boating vessel.

1. From the time Dr Doyle commenced his proceedings the respondent contended that Dr Doyle had failed to identify a reviewable decision and hence the Tribunal had no jurisdiction to hear and determine his application for review.

1. With the consent of the parties, this issue was determined as a preliminary matter. Both parties filed and served written submissions and at the request of Dr Doyle, I heard oral arguments on 8 November 2010. Subsequently, I determined that the Tribunal did not have jurisdiction to hear and determine Dr Doyle's application: see Doyle v NSW Maritime [2011] NSWADT 113.

1. My decision was published on 24 May 2011. On 5 July 2011, the respondent wrote to the Registrar seeking orders for the filing and serving of written submissions in regard to costs. In its letter, the respondent pointed out that, at the conclusion of the hearing on 8 November 2010, it had foreshadowed its application for costs in the event Dr Doyle's application was dismissed for want of jurisdiction. Regrettably, there was a delay in responding to the respondent's letter. However, on 18 January 2012, the Registrar wrote to the parties informing them of directions I had made for the filing and serving of written submissions in regard to costs. In compliance with those orders the respondent filed written submissions on 31 January 2012 and Dr Doyle filed written submissions in reply on 20 February 2012. In his submissions in reply, Dr Doyle asserted that the Tribunal had no jurisdiction to make the orders it had made on 18 January 2012. He also asserted that the Tribunal had no jurisdiction to award costs and in the alternative, 'in accordance with the principles of natural justice, the Tribunal cannot exercise any jurisdiction to award costs in the circumstances of this case.'

1. For the reasons set out below, I have found that the Tribunal does have jurisdiction to hear and determine the respondent's application for costs. However, I have determined that there should be no order as to costs.

Jurisdiction

1. Dr Doyle contended that the decision of the Tribunal in dismissing his application for lack of jurisdiction, without making any orders as to costs, was equivalent to a decision that determined the proceedings without making any order as to costs. He also contend that, on the publication of the Tribunal's decision, he was led to believe that no further participation of the proceedings would be possible, let alone required, whether for costs or any other purpose.

1. In my view, the decision of the Tribunal only determined the jurisdiction issue in regard to Dr Doyle's application. In this regard I note that Tribunal's decision was in the following terms ' the Tribunal has no jurisdiction to hear and determine the Applicant's application for review.' In my view, this was not a decision, which determined the issue of costs. An application for costs was clearly raised by the respondent at the conclusion of the hearing. I also note, the respondent had advised Dr Doyle of its intention to seek costs if he pressed his application. It was initially raised in a letter the respondent wrote to Dr Doyle on 24 June 2010. In that letter, the respondent clearly set out the basis of its argument as to why the Tribunal had no jurisdiction to hear and determine his application. The respondent confirmed its position as to costs in a letter dated 29 October 2010.

1. Accordingly, Dr Doyle, a practising solicitor, was at all times aware of the respondent's contention as to a lack of jurisdiction and its intention to seek costs in the event the Tribunal dismissed his application for want of jurisdiction. Hence, I cannot accept his contention that he was led to believe that no further participation in the proceedings would be possible following the publication of the Tribunal's decision.

1. Dr Doyle also contended that the respondent's application for costs was made out of time and that time should not be extended. In support of his argument Dr Doyle referred to the Tribunal's Practice Note No 22 in regard to costs. That Practice Note sets out guidelines for making an application for costs in regard to proceedings before the Tribunal. Paragraph 9 of that Practice Note is in the following terms:

9. Application for costs

The parties should tell the Tribunal and the other party that they will be applying for a costs order as soon as they become aware of circumstances which justify an order for costs. If the matter goes to hearing and the application for costs is pursued, the person applying for costs should file and serve a precise statement of the amount of costs actually sought and its components.

The parties are encouraged to advise the Tribunal at the conclusion of the hearing if they wish to make an application for costs. Any such application should be made at the time, even if that application is based on an assumption as to the outcome of the proceedings. The Tribunal will determine the application in the reasons for decision.

The parties are not encouraged to apply for costs are receiving the reasons for decision. Such an application leads to unnecessary delays in the finalisation of the matter. If such an application is made, it should set out the reasons that an application for costs was not made at the conclusion of the hearing. The Tribunal may list the application for an oral hearing or determine the application 'on the papers' that is, without a hearing ...

1. In my view, the respondent has acted in accordance with this paragraph when making its application for costs. As I have already indicated, the undisputed evidence is that early in the proceedings, the respondent informed Dr Doyle of its intention to seek costs and the basis on which they would be sought. The delays in making orders in regard to such an application were not that of the respondent.

1. Dr Doyle has also contended that he has suffered 'serious prejudice' as a result of the directions made by the Tribunal so many months after its decision on jurisdiction had been published. He went on to assert that he would have commenced appeal proceedings within the prescribed 28 days so as to preserve his position if he had known the issue of costs remained outstanding. Dr Doyle then went on to set out a number of grounds of appeal, which he asserted had a good prospect of success had he appealed. In my view, given Dr Doyle's qualifications and experience, his assertion in regard to prejudice is primarily one of form, with little (if any) substance.

1. Accordingly, I find that the Tribunal has jurisdiction to hear and determine the respondent's application for costs.

Costs

1. The Tribunal's power to award costs is set out in section 88 of the Administrative Decisions Tribunal Act 1997 (the ADT Act). That section relevantly provides as follows:

88 Costs

(1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section.

(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:

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

(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or

(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or

(iv) causing an adjournment, or

(v) attempting to deceive another party or the Tribunal, or

(vi) vexatiously conducting the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

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

(2) The Tribunal may:

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.

(3) ...

(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.

1. It is well accepted that the general rule in regard to costs under section 88 is that each party is to pay its own costs in regard to proceedings before the Tribunal. The exception to that rule is where the Tribunal is satisfied that it is fair to award costs having regard to the matters set out in subsection 88(1A). It is not disputed that this is a discretionary power, which is to be exercised having regard to the matters set out in paragraphs 88(1A)(a) to (e). In this regard, the respondent has relied on the grounds set out in paragraphs (88)(1A)(a)(vi) (vexatiously conducting the proceedings),(c) (Dr Doyle's claim having no tenable basis in fact or law),(d) (the nature and complexity of the proceedings) and (e) (other matters) of the ADT Act.

1. In the recent decision of Boutros v Director-General, Department of Finance and Services (No. 2) (costs) (GD) [2012] NSWADTAP 7, at [8], the President noted the following:

8 The respondent did not seek costs at first instance. This, as I see it, is the proper approach and in keeping with the desirability of maintaining an accessible merit review forum for the citizens of New South Wales affected by adverse administrative decisions that are reviewable in the Tribunal. The objects clause of the ADT Act, s 3, emphasises these values, see for example objects (b), (e), (f) and (g).

1. The decision for which Mr Boutros had sought review was also a licensing decision (i.e. a licensing decision under the Motor Dealers Act 1974).

1. Section 3 of the ADT Act relevantly provides as follows:

3 Objects of Act

The objects of this Act are as follows:

(a) to establish an independent Administrative Decisions Tribunal:

(i) ...

(b) to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair,

(c) to enable proceedings before the Tribunal to be determined in an informal and expeditious manner,

(d) ...,

(e) ... ,

(f) to foster an atmosphere in which administrative review is viewed positively as a means of enhancing the delivery of services and programs,

(g) ...

1. The respondent relied on the remarks of the President in Miriani v Commissioner for Fair Trading [2005] NSWADT 99 at [39] and [40]. That decision concerned an application for review of a decision of the respondent agency under the now repealed Freedom of Information Act 1989. In my view the remarks of the President must be considered in the context of that particular application. However, I accept that the knowledge and expertise of a party may be a relevant factor when considering a cost application. It is the contention of the respondent that Dr Doyle's qualifications and experience as a lawyer is a relevant factor in that he continued to press his application, fully appreciating the respondent's position as to the essential issue as to jurisdiction, namely whether there was in fact a reviewable decision.

1. The respondent also relied on the following remarks of Basten JA in AT V Commissioner of Police, NSW [2010] NSWCA 131 at [33] in regard to section 88 of the ADT Act:

33 That approach does not diminish the force of the general principle that each party should bear its own costs in the Tribunal, a principle applicable at both first instance and before the Appeal Panel. Although an order varying the general rule may be made "only if" the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order. The criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. The circumstances in which fairness may be identified are indicated by the specific attributes listed in sub-s (1A), but subject to the generality of paragraph (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b)-(g) of the Tribunal Act.

1. That case was an appeal from a decision of the Appeal Panel upholding the decision of the Tribunal at first instance, in regard to an application for review of conduct of the respondent agency, the Commissioner of Police, NSW, which AT contended to be a breach of an information protection principle under the Privacy and Personal Information Protection Act 1998. At issue in that appeal was the proper construction of that Act in so far as it related to the time within which an application for review of an agency's conduct should be lodged. As pointed out by Basten JA, at [23], AT had not made an application for costs before the Appeal Panel or the Tribunal at first instance. However, Basten JA found that the Court of Appeal had jurisdiction to make cost orders under section 88 of the ADT Act in regard to the proceedings in the Tribunal. His Honour went on to make the orders sought by AT on the basis of the complexity of the construction issues and the fact that AT had been successful in her appeal to that Court.

1. I accept the respondent's submissions that the basis on which Dr Doyle had brought his application for review were weak. He could not point to any clear decision made by the respondent in respect to the maritime license that had been issued by the respondent under section 42 of the MS Act, in respect to the specific Blue Sky Boating vessel he had a right to book and use. Instead, his argument was fairly convoluted. One, which I doubt a non-lawyer would have the capacity to make. However, this in my view does not mean that Dr Doyle's conduct in pressing his application was vexatious. In this regard, I note Dr Doyle prosecuted his application without delay. When the matter first came before the Tribunal orders were made for the filing and serving of written submissions. These were complied with and on the second occasion the matter came before the Tribunal directions were made for the filing and serving of further submissions and the matter was set down for hearing. I note the respondent objected to the matter being set down for hearing and indicted that the matter in issue could be dealt with on the papers.

1. The respondent contends that the jurisdiction issue was straightforward and that Dr Doyle's conduct in prosecuting his application has resulted in the respondent incurring unnecessary costs. I can understand that the respondent may have been frustrated by the position taken by Dr Doyle, particularly when his argument was weak in comparison to those of the respondent. However, in my view, in the circumstances of this application, this alone is not sufficient to find that it is fair to make an award of costs in favour of the respondent. This was a first instance application, made on the basis of an interest in a boat share arrangement, which entitled Dr Doyle access to a vessel licensed by the respondent under the MS Act. That is, it cannot be said the application was made without any proper foundation. Nor, in my view, can it be said that Dr Doyle conducted the proceedings in a way that disadvantaged the respondent. In my view it is difficult to find that Dr Doyle's request to make oral submissions disadvantaged the respondent, particularly when the Tribunal made the order for a hearing, notwithstanding the respondent's objection thereto.

1. Nor did the respondent assert that Dr Doyle had a history of making similar applications on such convoluted grounds. Had this been the case I may have come to a different conclusion.

1. Accordingly, I am not satisfied that, in these proceedings, there is a basis on which to exercise the Tribunal's discretion, under subsection 88(1A) of the ADT Act, and depart from the general rule, in subsection 88(1), that each party pay its own costs.

Order: The respondent's application for costs is refused.

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Decision last updated: 27 March 2012