Hawke v Chief Executive Officer, WorkCover NSW (No.2) (GD)

[2008] NSWADTAP 45

Appeal Panel - Internal

CITATION:	Hawke v Chief Executive Officer, WorkCover NSW (No.2) (GD) [2008] NSWADTAP 45
PARTIES:	APPELLANT Dominic Peter Hawke RESPONDENT Chief Executive Officer, WorkCover NSW
FILE NUMBER:	089007
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	10 June 2008
DATE OF DECISION:	25 July 2008
BEFORE:	O'Connor K - DCJ (President)
CATCHWORDS:	Costs - appeal - summarily dismissed - respondent's application - costs awarded - exercise of discretion - Administrative Decisions Tribunal 1998, s 88
MATTER FOR DECISION:	Costs
DECISION UNDER APPEAL:	Hawke v Chief Executive Officer, WorkCover NSW [2008] NSWADT 4
FILE NUMBER UNDER APPEAL:	073161
DATE OF DECISION UNDER APPEAL:	01/07/2008
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
CASES CITED:	Hawke v Chief Executive Officer, WorkCover NSW (GD) [2008] NSWADTAP 30
REPRESENTATION:	APPELLANT In person RESPONDENT G De Courcey, solicitor
ORDERS:	1. Application granted 2. Appellant to pay the respondent’s costs of the appeal, as agreed or assessed.

REASONS FOR DECISION

1 This is a decision supplementary to the decision published as Hawke v Chief Executive Officer, WorkCover NSW (GD) [2008] NSWADTAP 30 (9 May 2008) (appeal file no. 089007).

2 In that decision the Appeal Panel, constituted by me sitting alone, refused Mr Hawke leave to appeal against an interlocutory decision of the Tribunal (refusal to extend time for application for review of decisions made by the respondent administrator). As the administrator had applied for costs of the proceedings, I made directions for the filing of submissions and the determination of that application on the papers under s 76 of the Administrative Decisions Tribunal Act 1997. This decision deals with that application.

3 The general rule contained in s 88(1) of that Act applies to review matters, i.e.:

‘(1) … 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.’
4 WorkCover’s principal submission as to the ‘special circumstances’ justifying an award of costs in its favour is that ‘the applicant in the conduct of the proceedings made claims for which there was no tenable basis in fact and law and thereby disadvantaged the respondent in defending those claims’.

5 WorkCover then refers to numerous factors which it considers, at least in their totality if not viewed in isolation from each other, warrant a finding of ‘special circumstances’.

6 The factors are:

- degree of lack of success of the appeal;

- the introduction into the appeal proceedings of arguments going to the merits of the underlying administrative decisions, when the immediate issue was the correctness of the Tribunal’s decision to refuse leave to extend the time for the application for review;

- the lack of any reasonable prospects of success of the leave motion given that two of the underlying decisions were made more than two years’ earlier;

- the applicant’s assertion as to the law under which the trainer accreditation was cancelled (the third and most recent decision), which was manifestly wrong and would have been known to be erroneous to the applicant;

- the applicant should have understood that this decision was not reviewable, and fell outside the jurisdiction of the Tribunal;

- the applicant’s continuation to press at the Appeal Panel level that his case had a ‘public interest’ aspect, when none was evident;

- the weakness of his procedural fairness claim in relation to the filing of further material before the Tribunal (an issue dealt with in the Appeal Panel decision);

- and his continuing to press that claim.

7 In conclusion the respondent’s submission is ‘the applicant misconceived his applications and made an insubstantial procedural application and consideration of this application gives rise to special circumstances that warrant the making of a costs order’.

8 In reply Mr Hawke criticised the taking by WorkCover of the points as to jurisdiction and the lateness of his review application. He referred to the ill-health problems he has had over recent years. In conclusion he says that:

‘The last page and a half of WorkCover’s submissions for costs are inflammatory remarks and not relevant to costs. A careful reading of my various submissions to the ADT would show that in fact these dot points are taken out of context, and miscontextualised [sic] by the WorkCover solicitors’.
9 He submits that the ordinary rule should be applied – each party to bear their own costs.

Assessment

10 What circumstances may amount to ‘special circumstances’ attracting a costs order has been the subject of numerous decisions in the Tribunal and at Appeal Panel level. There is also a Practice Note, No 12, giving guidance on the way the Tribunal might exercise the discretion.

11 The external merits review of administrative decisions by government agencies and decision-makers serves an important public purpose. The last of the objects listed in s 3 of the Act is:

‘(g) to promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales.’
12 In keeping with this object, citizens should not be unduly deterred from applying to the Tribunal for review of adverse decisions affecting them. The costs rule in s 88(1) displaces the standard rule applying in the ordinary courts, of costs-follow-the-event.

13 It is rare in the merits review jurisdiction of the Tribunal to see government agencies apply for costs at the first instance level when a citizen fails in obtaining an order from the Tribunal varying or setting aside the challenged decision.

14 This is, as I see it, as it should be. The conduct of applicants for review would have to be quite extreme in the way in which they have presented their cases or in bringing the proceedings in the first place before any order for costs at first instance would be warranted. Some of the circumstances that might fit this description are dealt with in the Practice Note.

15 But, as I see it, there is a case for a less non-interventionist standard to be applied to appeals. If the losing party at first instance (whether citizen or administrator) brings forward an unmeritorious appeal, the other party should be given some protection from having to go around the course a second time. The Practice Note states:

‘ Special circumstances that may justify a costs order

2. The following are some examples of special circumstances that may justify a costs order. …

- 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; …

- where an appeal is lodged and the Appeal Panel considers the appeal was without any real prospect of success.

Appeal Panel proceedings

12. Appeal Panel proceedings in relation to review are also governed by s 88 of the Administrative Decisions Tribunal Act 1997. Parties should note that where a review appeal is lodged and the Appeal Panel considers the review appeal was without any real prospect of success this may be regarded as a special circumstance justifying an award of costs.’

16 In my view Mr Hawke’s appeal was manifestly weak. Mr Hawke originally sought to put in issue three administrative decisions affecting him (from 2004, 2005 and 2007). The Tribunal correctly ruled that the 2007 decision did not attract the jurisdiction of the Tribunal. (As I indicated in the previous decision, the appeal did not, in my view, reagitate that ruling.)

17 Of the eight points put forward by WorkCover as justifying an order in its favour, I make the following comments. As to the first point, I accept that the appeal was a very weak one. As to the second point, it is not unusual in my experience for litigants in person to continue to focus at appeal on their underlying grievance even though the appeal may only concern a procedural point (here leave for extension of time). As to the third point, which is really a particularised version of the first point, the prospects of success where the two decisions within jurisdiction were more than two years old, was dismal. As to the fourth point, my view is that this matter did not form part of the appeal, though Mr Hawke continued to refer to it with concern in his appeal. The fifth point is an extension of this point. As to the sixth point, it is the case that Mr Hawke continued to press a public interest case for grant of leave. It was very weak, in my view. The seventh and eight points deal with the weakness of his procedural fairness claim.

18 Read as a whole, these objections are all to the effect that the agency’s time was wasted by Mr Hawke in pursuing a very weak, if not vexatious, appeal.

19 The main cost to the agency, as I see it, relates to the professional time involved in making submissions. There were also two attendances at directions hearings. There was no final oral hearing. Instead with the agreement of the parties the appeal was determined on the papers.

20 In my view, WorkCover has established special circumstances, which I would sum up as the pursuit of a manifestly weak application for extension of time given that the decisions sought to be put in issue were more than two years old.

21 Nothing was put before me as to what the amount of costs sought is likely to be. In my view the costs to be recovered should be assessed by reference only to the professional time (by reference to a modest scale given the simplicity of the subject matter) involved in preparing the submissions for the appeal, and the submissions for the present application. I would not be inclined to include costs of attendance at the directions hearings.

Orders

1. Application granted

2. Appellant to pay the respondent’s costs of the appeal, as agreed or assessed.