EG v Commissioner of Police, New South Wales Police (No 2)

[2004] NSWADT 226

CITATION:	EG (No 2) -v- Commissioner of Police, New South Wales Police [2004] NSWADT 226
DIVISION:	General Division
PARTIES:	APPLICANT EG RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	023308
HEARING DATES:	09/08/2004
SUBMISSIONS CLOSED:	09/20/2004
DATE OF DECISION:	10/08/2004
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:	Costs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Privacy & Personal Information Protection Act 1998
CASES CITED:	Gizah Pty Ltd v AXA Trustees Ltd (2) [2001] NSWADT 164 Graham v Director General, Department of Community Services (ex tempore, unreported) Graham -v- Director General, Department of Community Services [2001] NSWADTAP 4 Director General, Department of Education and Training -v- Simpson (GD) [2001] NSWADTAP 6
REPRESENTATION:	APPLICANT No appearance RESPONDENT P Singleton, barrister
ORDERS:	EG is ordered to pay the costs of the Commissioner of Police, NSW Police incurred during the period 17 June 2004 to 9 August 2004 as agreed or, if not agreed within 28 days, as assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987.

1 EG was a police officer studying to be a lawyer. He became aware that an employee of NSW Police had sent a letter to the Legal Practitioners Admission Board about his suitability to be a legal practitioner. He brought proceedings in the Tribunal in relation to the alleged disclosure of personal information about him in that letter. After some preliminary hearings and an appeal, the question before the Tribunal was whether the information in the letter is “personal information” under the Privacy and Personal Information Protection Act 1998 (PPIP Act).

2 The Tribunal held a preliminary conference on 5 May 2004. EG did not attend that conference, nor did he tell the Tribunal that he would not be attending. The Tribunal contacted his mother who told us that EG was still living in the United States. We managed to get in touch with EG and he participated in the preliminary conference by phone. The matter was set down for hearing on 9 August 2004, which was a few days after EG said he was returning to Australia. Despite the fact that the Tribunal made a direction for EG to file and serve any documents on which he intended to rely by 16 June 2004, EG did not do so and did not provide any reason for his failure to do so. Since the preliminary conference, NSW Police has applied for the hearing date to be vacated on two occasions. The basis for that application was that EG had not filed any material and the unavailability of their counsel on that date. The Tribunal refused those applications.

3 On the morning of the hearing the Tribunal received a facsimile from EG which had been sent from the United States the day before, that is Sunday 8th August. The letter said:

I am the applicant in the abovementioned matter, listed for hearing before the Administrative Decisions Tribunal on 9th August 2004. I am also representing myself in this matter.

I am currently in the United States of America, and unfortunately circumstances have not enabled me to return to Australia for this matter.

I wish to seek an adjournment, or if that is not possible at this late stage, to withdraw from these proceedings.

I apologise to the Court and the Respondent for this late notice

Regards

(signed)

EG

4 The first question for the Tribunal was whether the matter should be adjourned or dismissed on account of EG’s unavailability. On 9 August 2004, the Tribunal gave oral reasons for dismissing the application.

Costs

Introduction

5 NSW Police applied for costs, at least from 16 June 2004 when EG was due to file any material in support of his application. The Tribunal gave EG an opportunity to make submissions on the application for costs but he failed to do so. The Tribunal may only award costs “if it is satisfied that there are special circumstances warranting an award of costs.” (Administrative Decisions Tribunal Act 1997, s 88.)

6 EG has known since 5 May 2004 that the hearing was scheduled for 9 August. He must have known for some time before the hearing that he would not be able to attend in person. If he had told NSW Police as soon as he became aware that his plans had changed, they may not have incurred the degree of expense that they incurred by briefing counsel and preparing a defence to the claim. The question is whether EG’s conduct amounts to special circumstances warranting an award of costs.

7 Special circumstances are circumstances which are out of the ordinary; not necessarily circumstances which are extraordinary or exceptional (Gizah Pty Ltd v AXA Trustees Ltd (2) [2001] NSWADT 164.) In a case in the Equal Opportunity Division, the Tribunal awarded costs to a respondent when the applicant withdrew her application on the Friday before the Monday when it was listed to be heard. (Graham v Director General, Department of Community Services; ex tempore, unreported) Although the Appeal Panel did not have to deal with this question on appeal, it made the following relevant comment:

We are satisfied viewing the history of the costs rulings in this matter that the Tribunal was proceeding on the basis that the ordinary rule should not be disturbed unless there was egregious conduct on the part of either of the parties justifying an exceptional order. We have no doubt that late withdrawal on a Friday when the case is due to commence on the Monday could be such a circumstance. ( Graham -v- Director General, Department of Community Services [2001] NSWADTAP 4 at [32]).

8 This comment can be contrasted with a Tribunal decision refusing a respondent’s application for costs when the appellant withdrew an appeal five hours before the hearing was due to commence. One of the reasons that the Appeal Panel refused the respondent’s application for costs was that the ground of appeal was not totally devoid of merit. (Director General, Department of Education and Training -v- Simpson (GD) [2001] NSWADTAP 6 at [23].) Despite the Tribunal’s ruling in that case, I can see no substantive difference between the sitaution where an applicant belatedly withdrews an application and where an appellant belatedly withdraws an appeal. In both cases the other party has been put to unnecessary expense. The critical question is whether the party’s conduct in withdrawing at the last minute, is egregious enough to justify a costs order.

9 In this case, EG did not effectively apply for an adjournment until the day of the hearing. That is when his facsimile, sent on the previous day, reached the Tribunal. He was aware when making that application that it may not be granted and said that if that was the case, he would withdraw his application. I find that EG knew he was not going to be in Australia for the hearing before the Sunday prior to the hearing on the Monday. His failure to apply for an adjournment or withdraw his application earlier shows a complete disregard for the fact that the respondent would incur costs in preparing to defend the matter and in appearing at the hearing. Although invited to do so, EG did not make any submissions to the Tribunal as to why he should not be liable for the costs of the NSW Police. In my view, EG’s conduct amounts to special circumstances warranting an award of costs and costs should be awarded for the period from 17 June 2004 to 9 August 2004.

Order

10 EG is ordered to pay the costs of the Commissioner of Police, NSW Police incurred during the period 17 June 2004 to 9 August 2004 as agreed or, if not agreed within 28 days, as assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987.