GJ v NSW Department of Education and Training

[2009] NSWADT 304

CITATION:

GJ v NSW Department of Education and Training [2009] NSWADT 304

DIVISION:

General Division

PARTIES:

APPLICANT
GJ

RESPONDENT
NSW Department of Education and Training

RESPONDENT
NSW Department of Education and Training

FILE NUMBER:

083278

HEARING DATES:

4, 5 and 27 May 2009

SUBMISSIONS CLOSED:

27 May 2009

 
DATE OF DECISION: 

8 December 2009

BEFORE:

Higgins S - Judicial Member

CATCHWORDS:

Amendment of record

LEGISLATION CITED:

Administrative Decisions Tribunal Act 1997
Administrative Decisions Tribunal Amendment Act 2008
Freedom of Information Act 1989

CASES CITED:

Bennett v University of New England (unreported, NSW District Court, 7 August 1991)
Coburn v NSW Police [2003] NSWADT 2
Crewdson v Central Sydney Area Health Service [2002] NSWCA 345
Ferns v New South Wales Department of Corrective Services [2007] NSWADT 296
GJ v Department of Education and Training [2008] NSWADT 348
Hayward-Brown v Wentworth Area Health Service [2000] NSWADT 46
Livermore v Tumbarumba Shire Council (No.2) [2008] NSWADT 172
S v Department of Community Services [2000] NSWADT 24
Waite v Department of Local Government [2004] NSWADT 11

REPRESENTATION:

APPLICANT
In person

RESPONDENT
P Cribb, solicitor

ORDERS:

1.The decision of the respondent to refuse the applicant’s application to amend paragraphs 44, 53 and 59 of the statement of Mr Malins is affirmed
2.No order as to costs.

REASONS FOR DECISION

Introduction

1 This is another application by GJ seeking review of a decision by the respondent, the Department of Education and Training, in regard to her request for the amendment to two documents that she had obtained access to pursuant to the Freedom of Information Act 1989 (‘the FOI Act’).

2 The two documents for which GJ has sought amendment are a signed statement, dated 25 July 2002, of Mr John Malins (‘Mr Malins’), a principal investigator in the respondent’s Employee Performance and Conduct Directorate, and a ‘draft’ unsigned and undated statement of GJ, prepared by Mr Malins and attached as Annexure 2 to his statement. The circumstances in which the documents were prepared by Mr Malins is discussed below.

3 In her original request for amendment, GJ listed numerous aspects of each document as being either ‘incomplete’, ‘incorrect’ and/or ‘misleading’. As a consequence her request for amendment was extensive. The respondent found that neither document was ‘incomplete, incorrect, out of date or misleading’ and determined to refuse GJ’s request for amendment: see sections 39 and 44 of the FOI Act.

4 After GJ had filed her application for external review, the Tribunal encouraged the parties to see if they could reach some agreement on the various amendments sought. GJ, who is not legally trained and at all times unrepresented, agreed to re-examine her requested amendments in light of decisions of the Tribunal, including the decision that involved her earlier application for external review of a decision by the respondent to refuse her amendment request of file notes of Mr Malins: see GJ v Department of Education and Training [2008] NSWADT 348. Following her re-examination, on 12 December 2008 (see Exhibit A3), GJ filed and served a letter, dated 8 December 2008, in which she said she would only be pressing for the amendment of 3 specific paragraphs in Mr Malins’ statement. These were paragraphs 44, 53 and 59 (see Exhibit A3).

5 The paragraphs for which GJ has sought amendment each contain a statement about what GJ had allegedly said to Mr Malins about her husband during a meeting they had on 24 July 2002. GJ asserts that she did not say what is contained in the statement and she seeks to have the statement amended to reflect what she asserts she said.

6 GJ’s application was heard on 4, 5 and 27 May 2009. It became apparent during the course of the hearing that in confining the number of amendments she was seeking to Mr Malin’s statement she was also pressing amendment of the draft statement Mr Malins said he had prepared for GJ to sign. It was GJ’s position that it was not until she obtained a copy of this document under the FOI Act, many years after it was created, that she was aware of its existence, let alone its contents, which she also said was false in many respects.

7 By consent, during the hearing, the parties agreed that the draft statement be amended by the following sentence being printed along each side and along the middle of each page of the document:

‘This is a document prepared by Mr Malins. It was not prepared by [GJ] nor was it signed or approved by her.’

8 On the basis of this agreement between the parties it is unnecessary to deal with the amendments GJ sought in regard to this particular document.

9 The question for determination in this application is whether the respondent’s decision to refuse to amend paragraphs 44, 53 and 59 of Mr Malins’ statement as requested by GJ is the correct and preferable decision, having regard to the relevant facts and the applicable law (see section 63(1) of the Administrative Decisions Tribunal Act 1997). In making this determination, the main issues are factual in nature; namely whether the information in paragraphs 44, 53 and 59 is not ‘incomplete, incorrect, out of date or misleading in a material respect’.

10 The right to seek amendment of an agency’s records is found in s.39 of the FOI Act, which provides as follows:

39 Right to apply for amendment to agencies’ record

A person to whom access to an agency’s document has been given may apply for the amendment of the agency’s records:

(a) if the document contains information concerning the person’s personal affairs, and

(b) if the information is available for use by the agency in connection with its administrative functions, and

(c) if the information is, in a person’s opinion, incomplete, incorrect, out of date or misleading.

11 Section 44 of the FOI Act sets out the circumstances in which an agency may refuse to amend record as requested by the FOI applicant. That section provides:

44 Refusal to amend records

An agency refuse to amend its records in accordance with an application:

(a) if it is satisfied that its records are not incomplete, incorrect, out of date or misleading in a material respect, or

(b) if it is satisfied that the application contains matter that is incorrect or misleading in a material respect, or

(c) if the procedures for amending its records are prescribed by or under the provisions of a legislative instrument other than this Act, whether or not amendment of those records is subject to a fee or charge.

12 Where an agency refuses to amend its record as requested, the FOI applicant may, pursuant to section 46 of the FOI Act, by notice in writing lodged with the agency, ‘require’ the agency to add a notation to the record in question. That notation is required to specify the respects in which the FOI applicant asserts the record is incomplete, incorrect, out of date or misleading and the information the applicant asserts is necessary to complete the record or bring it up to date. If such a request is made the agency is obliged to make the necessary notation and to ensure that it is given to any person to whom the record may be disclosed.

13 In this application, there is no dispute that the two documents in question contain personal information about GJ and that their contents was information that was available for use by the respondent in its administrative functions.

14 It was also accepted that the onus is on the respondent to satisfy the Tribunal that its decision to refuse to amend the file notes as requested by GJ was justified: see section 61 of the FOI Act and Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 at [32], Hayward-Brown v Wentworth Area Health Service [2000] NSWADT 46 at [38] and Ferns v New South Wales Department of Corrective Services [2007] NSWADT 296 at [15] and Livermore v Tumbarumba Shire Council (No.2) [2008] NSWADT 172 at [49].

15 The relevant legal principles in regard to the amendment of a record of an agency under the FOI Act were discussed at length in GJ [2008] 348 (supra) at [16] to [22]. Accordingly, it is only necessary to briefly repeat those that are directly relevant to this application.

16 The words ‘incorrect’ and ‘misleading’ have been construed to mean ‘anything that is not in accordance with fact, or is erroneous or inaccurate’ and ‘leaving the wrong impression’: see Bennett v University of New England (unreported, NSW District Court, 7 August 1991).

17 It is well accepted that amendment provisions in the FOI Act are:

(a) only concerned with the accuracy of official records and not with the merits or legality of official action recorded therein and does not provide a vehicle for collateral review of the merits of that action: Crewdson (supra) at [24]; and
(b) not a vehicle for the determination of disputed questions of opinion which were honestly held and accurately recorded: see Crewdson (supra) at [19] and [34] and Ferns (supra) at [23]

18 It is also accepted that while the onus is on the respondent to establish that its decision is the correct and preferable decision, an applicant for amendment must initially provide some probative evidence in support of his/her contention that the information which is sought to be amended was incomplete, incorrect, out of date or misleading in a material respect.

19 The FOI Act does not specify the form in which an amendment is to take. The Court of Appeal and the Tribunal have determined that an amendment can be in the form of a notation; a deletion, a line being drawn through the relevant words in the document and a combination of these: see Crewdson (supra) at [35], Bennett (supra), Waite v Department of Local Government [2004] NSWADT 11; S v Department of Community Services [2000] NSWADT 24 at [59] and Coburn v NSW Police [2003] NSWADT 2. In essence the form of amendment will largely be dependent on the nature of the information found to be incorrect, incomplete, out of date or misleading. However, any amendment that is made should go no further than to correct what is incorrect, incomplete, out of date or misleading: see Ferns (supra) at [23].

20 At the hearing the respondent relied on the affidavit evidence of Mr Malins, sworn on 5 March 2009. Mr Malins also gave oral evidence and was cross-examined by GJ.

21 At the hearing GJ relied on a statutory declaration, dated 24 March 2009, she had made. She also gave oral evidence at the hearing and was cross-examined by Mr Cripps, solicitor for the respondent. In addition to this GJ relied on a written statement, dated 8 April 2006, of her friend, BJ, and a number of other documents. BJ and a former work colleague of GJ, KP, were also called to give oral evidence and were cross-examined by Mr Cribb.

The circumstances in which the documents came into existence

22 The circumstances in which the 2 documents the subject of this application came into existence is largely undisputed and as these circumstances are relevant to what is contained in those documents it is necessary to briefly set out what those circumstances were.

23 In early 2001, the respondent commenced an investigation into allegations that GJ’s husband was involved in an inappropriate relationship with a student at the school where he taught. Mr Malins was responsible for that investigation.

24 GJ had at all times supported her husband in his denial of the allegations.

25 On Wednesday, 17 July 2002, GJ returned to Sydney after a 5 month working holiday overseas. At this time, the respondents investigation of the allegations made against GJ’s husband were not completed. GJ returned without informing her husband and had every intention of going back overseas. GJ was picked up from the airport by her friend, BJ, and she stayed with her on the first evening and for some days following this.

26 On Thursday, 18 June 2002, GJ went to the family home. When she arrived at the home no one was there and she found, within the home, things that belonged to the student. GJ’s husband and the student arrived at the home shortly thereafter and an altercation ensued between GJ and her husband. The police were called.

27 On Friday, 19 July 2002, at about 9:10am GJ telephoned Mr Malins. As a result of that telephone conversation Mr Malins went to GJ’s home at about 1.00pm that afternoon to speak with her. GJ refused to let Mr Malins tape record their conversation or take photographs while he was at her home. Mr Malins asserted that in light of this response, and to the knowledge of GJ, he made handwritten notes of his conversations with GJ.

28 On Monday, 22 July 2002, at about 9.00am GJ again telephoned Mr Malins. It was not disputed that during this telephone conversation GJ informed Mr Malins that she had found a diary belonging to the student at her home. GJ asserted that Mr Malins again came to her home that afternoon. Mr Malin’s asserted he did not go there that afternoon, but he went to see GJ on Wednesday, 24 July 2002 as arranged with her during their telephone conversation on 22 July.

29 On Wednesday, 24 July 2002, at about 1.00pm, Mr Malins went to the home of GJ. On this day, Mr Malins showed GJ copies of the emails she had requested to see on 19 July 2002. These emails were attached to the letter of allegations sent, by the respondent, to GJ’s husband, in the latter part of 2001. Mr Malins also asserted that he showed GJ the 8 page draft statement he had prepared for GJ following their conversation the previous Friday. GJ acknowledges that Mr Malins had mentioned obtaining a statement from her the previous Friday. However, she denies Mr Malins showed her a draft statement that day or any other day. Mr Malins again asserted that he took handwritten notes of his conversations with GJ that day.

30 During their meeting on 24 July, GJ also gave Mr Malins the diary that she had found together with other documents she had found.

31 It is the evidence of Mr Malins that on Thursday, 25 July 2002, on the instructions of the employed solicitor of the respondent overseeing his investigation, he prepared the 11 page type written statement that is the subject of these proceedings. He said he prepared the statement from the handwritten notes he had taken during his telephone call and meeting with GJ on Friday, 19 July 2002, his telephone call with GJ on Monday 22 July 2002 and his meeting with GJ on Wednesday, 24 July 2002.

32 Mr Malins made handwritten file notes of the 2 telephone calls. These are very short and as Mr Malins explained he did not record everything that was said during these telephone calls. The handwritten notes of his conversations with GJ at her home on 19 and 24 July, Mr Malins explained were destroyed by him after he made his type written statement.

The requested amendments

33 The amendments which are pressed by GJ, paragraphs 44, 53 and 59, all relate to statements that Mr Malins asserts she made during their meeting on 24 July 2002. As I have said, GJ contends that she did not say what Mr Malins asserts she said and that she in fact said something to the contrary. The matters of particular concern to her are the following matters Mr Malins asserts she said to him on 24 July 2002:

(a) her husband ‘must have been the author’ of an email she was shown by Mr Malins on this day (paragraph 44);
(b) the daily entries in the diary of the student she had found, GJ said she was ‘of the opinion that [the name of the student] recorded her sexual activity’ with her husband (paragraph 53); and
(c) she ‘did not know her husband was having an improper relationship with’ the student until she returned home from overseas (paragraph 59).

34 GJ asserts she has a vivid recollection of what she said to Mr Malins on the day in question. She does not deny that she was shown the email referred to in paragraph 44 and made comments about purported sexual references in the student’s diary she had found, but asserts she at no time said to Mr Malins that her husband had written the email or that the sexual references in the diary recorded the students sexual activity with her husband. On the contrary, she said she told Mr Malins that in her opinion the email was ‘utter nonsense written by [the student]’ and that the sexual references were ‘a complete nonsense and not in any way believable.’

35 In regard to paragraph 59 of Mr Malins’ statement, GJ acknowledged that when she first returned home she had assumed this on the basis of what she saw and that she may have expressed this view to Mr Malins when she met with him on 19 July 2002. At the time she said she was still feeling jet lagged and very emotional and angry about what she had found.

36 However, by the Monday, 22 July 2002, she said she no longer assumed this to be the case after examining the situation more rationally over the weekend. During this time she read the diaries she found belonging to the student and also a diary of her husband and had formed a different view to what she had the previous week. She said she telephoned Mr Malins on the Monday to inform him of her changed view. In her letter of 8 December 2008 (see Exhibit A3), GJ expressed what happened as follows:

‘…I no longer believe my initial impressions to be in any way correct. Where immediately after my return from [place] I had assumed it probable that my husband was engaged in an improper relationship with the student in question, after very careful consideration of the facts before me I no longer held such a view. Rather I saw an innocent man in a state of profound mental collapse behaving most irrationally and patently out of character. I firmly believe that he had been “driven over the edge” by a lengthy, inept and senseless method of investigation of him.’

37 Mr Malins denied that GJ had informed him of her change of view on this day. It was accepted by the respondent that GJ changed her view but it did not accept that this occurred on the days in question in this application (i.e. 22 or 24 July 2004).

38 Central to GJ’s contention that paragraphs 44, 53 and 59 are ‘incorrect, incomplete and misleading in a material respect’ is this alleged change in her assessment of what she had assumed to be the case when she first arrived back at her home and her communication of this change to Mr Malins on 22 July 2002.

39 In support of her evidence about her change of opinion and having communicated this to Mr Malins on 22 July 2002, GJ relied on a handwritten letter she had written to her overseas landlady (see Exhibit A12). The letter tendered by GJ is the original letter and it is dated 23 July 2002. GJ explained that she had not been sent the letter because not long after she had finished writing it she received a telephone call from her landlady and they discussed the contents of the letter making it unnecessary for her to post it. In the letter GJ said the following:

‘Yesterday I had to virtually justify why I believe [name of husband] is having a mental breakdown and not guilty of anything. I know you told me to try and stay calm but I just couldn’t when I saw how it all looked. Like an idiot I rang the Department while I was almost hysterical with shock. I can’t describe how horrible it was after that to have to sit with this arrogant investigator from the Department and explain why I’d changed my mind about [name of husband] after I’d realised how stupid I’d been jumping to conclusions. It’s a nightmare – the whole thing! I am so angry with the Department. They’ve treated [name of husband] abysmally and caused this and I told the investigator so …’

40 GJ also relied on the evidence of her friend, BJ (see Exhibit A6), in support of her evidence. BJ confirmed that she had picked up GJ from the airport on the morning of her return from overseas and that GJ had stayed with her that particular evening. She then went on to say that the following day, Thursday 18 July 2002, when she returned from work in the afternoon she found GJ to be ‘extremely shocked and angered at what she had found’ that day at her home. BJ went on to say, within the week of GJ returning home from overseas, she did however, notice a marked contrast in GJ’s reaction to what she had found on the Thursday 18 July 2002. It was BJ’s evidence that:

‘… within a week of [GJ] arriving home and her pouring over various documents, she told me that perhaps things were not as they had first seemed with [name of GJ’s husband]. What she had read led her to believe that [GJ’s husband] was probably sick and not mentally stable …’

41 GJ’s work colleague gave similar evidence. Once again he was unable to be precise about when the particular change in fact took place.

42 GJ also tendered into evidence a record of interview with her general practitioner (see Exhibit A8) and a medical report of her treating psychiatrist (see Exhibit A9). In my opinion this evidence is of no real assistance to the matter in issue.

43 Nevertheless, GJ has placed sufficient material before the Tribunal to establish that after the weekend in question she changed her mind and no longer assumed that the allegations that had been made against her husband were correct. She has also established that she communicated this to Mr Malins the day before she wrote the letter to her overseas landlady. The letter as I have said is dated 23 July 2002, and GJ’s evidence is that she wrote the letter on this day. If I accept this evidence then I must also accept the evidence of GJ that Mr Malins visited her on 22 July 2002.

44 In my opinion, on the material before the Tribunal GJ is mistaken about the visit by Mr Malins on this day and the day on which she wrote the letter. On the evidence, the most probable explanation is that GJ wrote the letter after her meeting with Mr Malins on 24 July 2002.

45 That GJ changed her mind about the mental state of her husband does not appear to be in doubt. It was her evidence that she ‘saw an innocent man in a state of profound mental collapse behaving most irrationally and patently out of character’ and was, in her opinion, having a mental breakdown. That she communicated this to Mr Malins is consistent with paragraph 61 of Mr Malins’ statement in which he said:

‘… [GJ] described [name of GJ’s husband] as a good man who had lost the plot, was having a nervous breakdown and had got caught up with [name of student], who she described as evil.’

46 However, the question remains whether the matters asserted by Mr Malins in paragraphs 44, 53 and 59 of his statement are not ‘incorrect, incomplete or misleading in a material particular.’ As I have said, the onus is on the respondent to establish this.

47 The respondent contends that paragraphs 44, 53 and 59 of Mr Malins statement is no more than a record of Mr Malins’ account of what he was told by GJ on the days in question. That is, the paragraphs accurately record what Mr Malins honestly believed he heard or understood GJ to have said to him on 24 July 2002. If GJ disagreed with this, she was at liberty to require the agency to add a notation to the statement in accordance with section 46 of the FOI Act setting out those aspects of the statement she asserts are incorrect, incomplete or misleading and what she asserts to be correct and complete.

48 After carefully considering all the material and the relevant provisions of the FOI Act, I agree with the respondent’s contention.

49 As I explained to GJ throughout these proceedings and the earlier proceedings, the FOI Act is not a vehicle for examining the merits of what Mr Malins did during his investigation of her husband, including his discussions with her. However, as the amendment provisions of the FOI Act are concerned about the accuracy of the official records an agency it is appropriate to consider, not only the actual paragraphs or words for which amendment is sought, but also the nature of the document as a whole and the circumstances in which it came into existence.

50 While I accept the evidence of Mr Malins that he had a responsibility to make a record of the steps he has taken in the course of his investigation, I do not accept his explanation that his statement was prepared entirely for this purpose. After his meeting with GJ on 19 July he clearly saw GJ as a potential witness. When she refused to have their conversation tape recorded he decided to take notes and from these he prepared the draft statement for GJ to sign on 24 July. Even on his own evidence, he knew, on 24 July, when he went to visit GJ that she would no longer be a willing witness, but she was willing to speak to him. Once again, Mr Malins said he made handwritten notes of what was said. Had these notes been retained and a file note been made of his visit I doubt there would have been any complaint. Instead, on instructions of the solicitor, Mr Malins prepared a formal statement, which included statements he asserted to have been said by GJ to him. The purpose of this can only have been to put into an evidential form what GJ had said to him.

51 It is not for the Tribunal to question this action or what use has been made of the document. However, it is noted that the asserted statements of GJ in this form are arguably hearsay evidence, but this is not a matter for the Tribunal.

52 Despite this criticism, I accept the evidence of Mr Malins that in making his statement he recorded that which he believed and understood GJ to have said to him, on 19 and 24 July 2002. It is very difficult to understand his handwritten notes were destroyed and once again this is not a matter for the Tribunal to investigate. I nevertheless found Mr Malins to be a credible witness. His statement was made relatively contemporaneously and on the basis of his evidence that it contains that which was in his opinion was relevant to his investigation, including his recollection of what was said by GJ to him, I am satisfied that the respondent has established that the assertions in paragraphs 44, 53 and 59 are not ‘incorrect, incomplete or misleading in a material particular.’

53 I make this finding notwithstanding my finding about GJ having changed her mind and having communicated this with Mr Malins as in my opinion, this change of mind is acknowledged by Mr Malins in his statement. At the same time, my finding is not a finding that what is asserted by Mr Malins in the paragraphs in question is in fact what GJ said, or that it was all she said.

54 It is not the role of the Tribunal under the amendment provisions to make conclusive findings of this nature. It is for this reason that Parliament has enabled the FOI applicant to require the agency to make a notation where the FOI applicant’s account of events differs to that which is recorded in the official record found not to be incorrect, incomplete or misleading. The official record would then show that there are two differing accounts of what in fact occurred and how they differ. In light of the findings of the Tribunal, GJ remains at liberty to require the respondent to include such a notation.

55 For the reasons set out above, in my opinion, the decision of the respondent is the correct and preferred decision and should be affirmed.

56 The respondent has made an application that the applicant pays its costs in regard to this application. This application is made on the basis that in a letter dated 20 February 2009, Mr Cripps, solicitor for the respondent, invited GJ to withdraw her application and if she did not do so the respondent would be seeking costs.

57 Sub-section 88(1) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’) provides that each party to proceedings before the Tribunal is to bear its own costs in the proceedings, except as provided under that section.

58 Sub-section 88(1A) of the ADT Act provides that subject to the rules of the Tribunal or any other Act or law, the Tribunal may award costs in relation to the proceedings before it, but only if it is satisfied that it is fair to do so having regard to the factors which are set out in paragraphs (a) to (e) of that subsection.

59 Section 88 of the ADT Act was amended with effect from 1 January 2009 (ADT Act, Schedule 5, Part 11, clause 43(2)). The amended provision was made by the Administrative Decisions Tribunal Amendment Act 2008, No. 77 (enacted 28 October 2008, which took effect on 1 January 2009 (see s. 2(1), as to Schedule 1 [33], see further Government Gazette No. 147, 14.11.2008, p. 10928; Government Gazette No. 158, 19.12.2008.) Although this application was filed prior to this particular amendment coming into effect, the application was heard in 2009 after the commencement of the new provision.

60 The factors set out in paragraphs 88(1A) included 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 vexatiously conducting the proceedings (a)(vi);

(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); and

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

61 In my opinion, the conduct of the applicant in progressing with her application after receiving the letter from Mr Cripps is not such to warrant an order for costs. That is, I am not satisfied that it is fair to make an order for costs having regard to the material before the Tribunal and the factors set out in paragraphs 88(1A) of the ADT Act.

62 The issues of concern to GJ were important. As an unrepresented litigant she continues to have some difficulty in understanding the nature of the amendment provisions in the FOI Act. She nevertheless reduced the ambit of her claim to 3 paragraphs in Mr Malins’ statement. While her application did not succeed she did have material to support what she was contending. Accordingly, it cannot be said that there was no basis in fact or law on which her application was made. In my view, there is no basis to make a finding that GJ vexatiously conducted her application.

63 The letter sent by Mr Cripps, in my view was of no assistance to GJ in understanding the real issues for determination by the Tribunal. It was written on the day after the Tribunal had made orders about the filing and serving of evidence. In the letter Mr Cripps informed GJ that she was ‘bound to lose’ and invited her to withdraw her application by 25 February and if she did not do so the respondent would be seeking its costs. He then set out in detail why the account given in paragraphs 44, 53 and 59 of Mr Malin’s statement were true and why her account was not probable. What in fact was said on the day in question, as I have explained, was not an issue the Tribunal was required to determine. The issue was whether what had been recorded by Mr Malins in these paragraphs was a reflection of his honest recollection and belief, at the relevant time, of what was said to him by GJ. While I am satisfied that it was, this does not mean that a cost order would be fair in the circumstances. On the contrary, in this application, GJ, an unrepresented litigant, endeavoured to conduct the proceedings without unnecessarily disadvantaging to the respondent.

64 Accordingly, the Tribunal makes no order as to costs.