Jackson v Commissioner of Police

[2020] NSWCATAD 168

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Jackson v Commissioner of Police [2020] NSWCATAD 168

Hearing dates:

11 May 2020

Date of orders:

02 July 2020

Decision date:

02 July 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

The Respondent is to pay the Applicants’ costs of the proceedings from 20 March 2020, as discussed in these reasons, in an amount not exceeding $1,000.

Catchwords:

Administrative Law – costs - GIPA Act - Whether special circumstances established

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Government Information (Public Access) Act 2009

Cases Cited:

CEU v University of Technology Sydney [2017] NSWCATAD 280

Cripps and Another v G & M Dawson Pty Ltd and Another; G & M Dawson Pty Ltd and Another v Cripps and Another [2006] NSWCA 81

Edward Lees Imports Pty Ltd v Commissioner of Fair Trading; Commissioner of Fair Trading v Edward Lees Imports Pty Ltd [2019] NSWCATAP 134

Hammond v Ozzy’s Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65

Hennessey v Roads and Maritime Services, G B Holdings Pty Limited v Roads and Maritime Services [2017] NSWCATOD 152

Mahenthirarasa v State Rail Authority Of New South Wales (No 2) [2008] NSWCA 201

Pascale v City of Parramatta [2017] NSWCATAD 332

Scott v Handley [1999] 58 ALD 373

Texts Cited:

None cited

Category:

Costs

Parties:

Andrew Jackson (First Applicant)
Mary Sutton (Second Applicant)
Commissioner of Police (Respondent)

Representation:

Counsel:
M McAuliffe (Applicants)

Solicitors:
Lazon Lex Lawyers (Applicants)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2019/00182360

Publication restriction:

Nil

Reasons for Decision

Introduction

1. This is an application brought by the Applicants for an award of costs pursuant to section 60 of the Civil and Administrative Tribunal Act 2013 (“the Act”). The application is made following the withdrawal of an application for review of a decision made by the Respondent pursuant to section 9(1) of the Government Information (Public Access) Act 2009 (“the GIPA Act”).

2. The substantive proceedings concerned an application to this Tribunal in which the Applicants sought review of a decision of the Respondent in relation to the Applicant's application for access to information under the Government GIPA Act. The access application sought access to information connected with a police search on their property in September 2017. The Respondent identified 12 documents as falling within the scope of the request and released some information to the Applicants but refused access to other information. The Respondent found that the withheld information was subject to an overriding public interest against disclosure. The Respondent also determined that it did not hold the balance of the information that was sought.

3. The Respondent accepted that there were reasonable grounds to believe that it could hold further documents identified in the Applicant's access application and caused further searches to be conducted in an attempt to locate information that the Applicants had identified.

4. Following the hearing in the substantive matter I remitted the matter for reconsideration by the Respondent. The Applicants were ultimately satisfied with the new determination and withdrew the application.

Legislative framework

5. Section 60 of the Act provides that each party to proceedings in the Tribunal shall pay their own costs. However, the Tribunal may award costs only after it is satisfied that there are special circumstances warranting an award of costs.

6. Sub-section 60(3) sets out factors that the Tribunal may take into account when determining whether to award costs. The Tribunal may also determine by whom costs are to be paid and to what extent they are to be paid and may also order that costs be assessed.

7. Section 60 of the Act is in the following terms:

60 Costs

1. Each party to proceedings in the Tribunal is to pay the party’s own costs.

2. The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

3. In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following—

   (a)   whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to 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)   whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

   (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3),

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

4. If costs are to be awarded by the Tribunal, the Tribunal may—

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

   (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.

5. In this section—

costs includes—

(a)   the costs of, or incidental to, proceedings in the Tribunal, and

(b)   the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.

8. Section 36 of the Act provides:

36 GUIDING PRINCIPLE TO BE APPLIED TO PRACTICE AND PROCEDURE

1. The "guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

...

1. Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal--

   (a)   a party to proceedings in the Tribunal,

   (b)   an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.

   ...

   9. In Cripps and Another v G & M Dawson Pty Ltd and Another; G & M Dawson Pty Ltd and Another v Cripps and Another [2006] NSWCA 81, the NSW Court of Appeal considered the meaning of the phrase "special circumstances". Santow JA (Mason P and Brownie AJA agreeing) said at paragraph [60]:

...it suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional. While a finding of "serious unfairness" is not prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration.

10. In CEU v University of Technology Sydney [2017] NSWCATAD 280 Senior Member Perrignon provided the following summary:

1. As the section makes plain, costs in the Tribunal do not follow the event. To justify an order for costs, an applicant must first satisfy the Tribunal that there are ‘special circumstances’ warranting it. To establish special circumstances, ‘it suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional’: Gaynor v Burns [2015] NSWCATAP 150 (overturned on different grounds in Burns v Corbett; Gaynor v Burns [2017] NSWCA 3, but remaining a useful guide to the section); Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11].

2. The matters to which the Tribunal may have regard in determining whether special circumstances exist are set forth in subsection (3). They include ‘any other matter that the Tribunal considers relevant’.

3. If the Tribunal is satisfied that special circumstances exist, it has a discretion to award costs. It is not obliged to do so. As the Appeal Panel observed in eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48]:

   [T]he discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs. Each situation must, of course, be assessed on a case by case basis to see whether or not special circumstances exist so as to warrant the award of costs.

   11. In terms of the nature of costs that may be awarded, time spent in preparation of a matter by persons who are not legal practitioners are not costs for the purposes of section 60 of the Act: Hammond v Ozzy’s Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 at paragraph [110].

The Applicants’ case

12. In summary, the Applicants rely on the following circumstances as constituting special circumstances:

1. The Respondent has repeatedly breached orders of the Tribunal causing extensive delay and unnecessary costs;

2. The Respondent twice failed to perform reasonable searches in accordance with its statutory obligations pursuant to section 53 of the GIPA Act, in circumstances where the inadequacy of those searches was apparent and ought to have been known to the Respondent;

3. The Respondent asserted that disclosure of information would reveal personal information, however, the personal information had already been disclosed to the Applicants by the Respondent; and

4. In the absence of the Respondent's deficient searches and initial decision to redact information, the proceedings would not have been commenced, as is evidenced by the withdrawal of the proceedings following the Respondent's third search for information.

13. The Applicants provided a chronology of events in support of their application highlighting the Respondent’s failure to comply with timetables set by the Tribunal. The Respondent does not dispute this chronology. In particular the Applicants noted that:

1. On 16 July 2019 Senior Member Higgins set a timetable that included an order that the Respondent was to file evidence and submissions on or before 13 August 2019 and evidence and submissions in reply on or before 30 August 2019. Senior Member Higgins listed the matter for hearing on 12 September 2019 and noted that the issues concerned the deleted information and the Respondents implied decision that it did not hold information of the kind requested by the Applicants.

2. The Respondent did not comply with the timetable that Senior Member Higgins set on 16 July 2019. On 10 September 2019 of Deputy President Cole vacated the hearing listed for 12 September 2019 and set a new timetable. This timetable required the Respondent to file and service evidence and submission on or before 20 September 2019.

3. The Respondent did not comply with the timetable that Deputy President Cole set on 10 September 2019. It filed its evidence and submissions on 15 October 2019. The Respondent also identified and released further documents and asserted that all reasonable searches had been carried out, but it advised the Tribunal that it had not completed the process of consultation pursuant to section 54(2)(a) of the GIPA Act.

4. On 29 October 2019 I set a further timetable for filing of the Applicants’ material and listed the matter for hearing on 16 December 2019.

5. The hearing commenced on 16 December 2019 before Senior Member Mulvey but, on an application brought by the Applicants, the matter was adjourned until 9 March 2020 without evidence being taken. A further timetable was set for the Respondent to file submissions in reply on or before 31 January 2020.

6. The hearing commenced before me on 9 March 2020 with the Applicants legally represented. In cross-examination Chief Inspector Sean Heaney accepted that searches undertaken by the Respondent had been deficient. The outcome of the hearing was that I remitted the matter to the Respondent for reconsideration under section 65(1) of the Administrative Decisions Review Act 1997. I ordered that the Respondent was to tell the Tribunal and the Applicants the outcome of the redetermination by 20 March 2020. The Applicants were to advise whether they were continuing or withdrawing the application by 31 March 2020. I listed the matter for further hearing on 6 April 2020.

7. The Respondent did not comply with the timetable that I set on 9 March 2020. Its redetermination was completed on 3 April 2020. The decision indicated that further documents had been located and were to be released. However, the Applicants were not provided with all of the documents that were said to be released. The Respondent sought that the hearing date of 6 April 2020 be vacated.

14. The Applicants submit that special circumstances exist owing to the Respondent's conduct throughout the proceedings. They rely on subsections 60(3)(b) and 60(3)(f). The Applicants' submission in this respect is that, firstly, the plainly deficient searches conducted by the Respondent unreasonably prolonged the proceedings and, secondly, the Respondent repeatedly failed to comply with the orders of the Tribunal.

Deficiency of the searches

15. Section 53 of the GIPA Act creates a mandatory obligation on an agency to undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The Respondent has performed three searches and, on each occasion, identified further material that was not identified in the previous searches.

16. The Applicants submit that the Respondent must have been aware of the deficiency of its searches however, it continued to submit that its searches were sufficient. They submit that it was unreasonable for the Respondent to submit that "all reasonable searches have been carried out' when it was in possession of documents that demonstrated this was not the case.

17. The Applicants withdrew their request for information once the third search located the material that they sought. On that basis, they submit that had the Respondent discharged its obligations diligently and competently at the outset, the entirety of these proceedings could have been avoided.

Repeated delinquency in respect of orders made by the Tribunal

18. The Applicants submit that the Respondent repeatedly breached orders made by the Tribunal. The Respondent is an experienced and sophisticated litigant, bound by model litigant obligations, who, for the majority of these proceedings, faced unrepresented applicants. The Applicants submit that the Respondent's repeated breaches, its repeated failure to reply to the Applicants' enquiries and repeated failure to notify the Applicants of its position must be considered "out of the ordinary".

19. The Applicants referred, by way of example, to the Respondent failure to comply with the order to file and serve the outcome of the remitted decision by 20 March 2020. The decision was not provided to the Applicants until late on 3 April 2020 which was the business day prior to the 6 April 2020 hearing date. The documents disclosed as a result of the decision were not provided until late on 6 April 2020.

20. If the Applicants had known in advance that the Respondent would be seeking to vacate the hearing date, they could have avoided the costs associated with its legal representatives preparing for a hearing and subsequently appearing at the hearing. Further, if the documents that were released by the 3 April 2020 decision had been provided at that time, the Applicants would have been in a position to advise the Tribunal on 6 April 2020 that they no longer pressed the GIPA review and the hearing date could have been avoided all together.

21. The Applicants submit that the Respondent's submissions that "all reasonable searches have been carried out” were demonstrably incorrect and that this claim had "no tenable basis in fact”: section 60(3)(c). Similarly, it is submitted that the Respondent's submission that disclosure would reveal personal information was weak. The third party's identity had already been revealed to the Applicants by the Respondent on 9 July 2018.

22. The Applicants further submit that these proceedings are not of great complexity, which makes the Applicants' expenditure on legal costs as a result of the Respondent's conduct far less excusable than it might otherwise be. There ought not to have been a need for the Applicants to engage counsel and cross-examine a witness in proceedings of this nature but for the Respondent's conduct: section 60(3)(d.

23. The Applicants submit that the Respondent's conduct is appropriately characterised as "out of the ordinary", and is directly responsible for the Applicants' legal costs.

The Respondent's case

24. In response the Respondent disputes that there are special circumstances warranting an award for costs in this matter.

25. The Respondent agrees with the summary of the applicable legislative provisions referred to above and does not dispute the Applicants’ chronology of events. It accepts that on a number of occasions it did not comply with Tribunal's orders made in the proceedings. However, it relies on comments that I made in Hennessey v Roads and Maritime Services, G B Holdings Pty Limited v Roads and Maritime Services [2017] NSWCATOD 152 (affirmed in Pascale v City of Parramatta [2017] NSWCATAD 332 at paragraph [9]. I stated at paragraphs [13] – [16]:

1. However, as the Appeal Panel noted in Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38, it does not follow that a costs order should be made because some factors are made out.

2. The discretion to award costs must be exercised judicially having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs: eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at paragraphs [37] and [48]; Nguyen & Anor v Perpetual Trustee Company Ltd; Perpetual Trustee Company Ltd v Nguyen & Anor (no 2) [2016] NSWCATAP 168 at paragraph [16].

3. It remains necessary for the Tribunal to determine whether the circumstances are sufficient to amount to 'special' circumstances that justify departing from the ordinary rule that each party bear their own costs. That is, to determine whether the factors relied upon by the Applicant, separately or in combination, establish special circumstances warranting an award for costs.

4. Subsection 60(3)(f) refers to the duty imposed by section 36(3). Section 36(1) of the NCAT Act sets out the "guiding principle" for the NCAT Act and the procedural rules, in their application to proceedings in the Tribunal. These are to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

   26. The Respondent submits that it has not prolonged unnecessarily the time taken to complete the proceedings by having undertaken additional searches and releasing additional information to the Applicants in the course of the proceedings On the contrary, the Respondent submits such conduct is common and in keeping with the spirit of the GIPA Act.

   27. It notes that from the time the Applicants were legally represented until the conclusion of the proceedings, only two additional documents were released. The Applicants were already in possession of some of that information and therefore the practical effect of the additional searches undertaken was that one additional document was located – a redacted CAD audio recording.

   28. The Respondent submits that it is not out of the ordinary, in the course of review proceedings commenced under the GIPA Act, for additional information to be located and released to an access applicant. In Pascale v City of Parramatta, the Tribunal acknowledged that such conduct (alone, and when taken together with non-compliance with the Tribunal's orders) would not have amounted to special circumstances which would result in an award of costs. The Tribunal stated:

5. … an argument that special circumstances arose envisaged by a party’s failure to comply, is in my view problematic.

6. Whilst the respondent changed its position and provided more documents during the period that the matter was before the Tribunal, and ultimately by the 22nd of August 2017 had addressed all of the applicant’s requirements for ‘information’ concerning the substantive GIPA matter, I observe that this is not particularly unusual when considering how agencies respond to GIPA requests. In practice some applications are not straightforward in respect of the information sought. Coupled with this is the integrity and efficiency of an agency’s record keeping system facilitating the efficient and satisfactory processing of an application.

1. This is clearly a less than ideal situation (especially from an applicant / consumer perspective) however the situation outlined in the preceding paragraph whilst not unprecedented, is not in my view completely at odds with the objects of the GIPA Act.

2. Ideally the Act contemplates an efficient and somewhat seamless transactional mechanism for citizens to avail themselves of government information. It would be fair to observe that the illustrated situation is less than ideal and does little to facilitate the GIPA objects, but that is not to say that it subverts those objects. Each situation will have unique features and need individual scrutiny. Systemic failures or problems in respect of the operation of the GIPA Act can be matters for comment by the Tribunal, but are within the responsibilities of the Information Commissioner’s functions and the Legislature generally.

   29. The Respondent submits that this same logic applies in respect of this matter While not ideal for an access applicant, it is not out of the ordinary for a respondent agency to conduct further searches and release additional information to an applicant in the course of Tribunal proceedings under the GIPA Act.

   30. The Respondent notes that additional searches were undertaken in this matter in direct response to an order to remit the matter made by the Tribunal on 9 March 2020. The order was based on a specific scope agreed between the party's legal representatives. The Respondent submits that it cannot be the case that an agency's having to undertake additional searches in response to a decision to remit a matter amounts to special or exceptional circumstances for the purposes of an award of costs. Otherwise costs would be a potential consequence on each occasion the Tribunal determined to remit a matter for reconsideration in GIPA Act review proceedings.

   31. Further, the Respondent submits that the fact that additional searches locate additional information does not necessarily lead to a finding that the original search was not reasonable as is required by section 53 of the GIPA Act. Such an outcome is consistent with section 58(3) of the GIPA Act.

   32. The Respondent submits that it is not now open to the Tribunal to make a finding in relation to the sufficiency of the search based solely on the fact that an additional document was located once the matter was remitted.

   33. The Respondent also disputes the Applicant’s contention that the matter would have been withdrawn if the additional information had been provided to the Applicants prior to the hearing on 9 March 2020. It submits that there remained a live issue of the Applicants’ request for the following information:

"Under what section of the Law Enforcement (Powers and Responsibility) Act (2002) did the NSW Police rely on when deciding to enter the property at 21 Lower Fort Street, Dawes Point without a warrant"

34. The Respondent submits that this item remained a live issue in the proceedings and was before the Tribunal to ultimately review until the proceedings were withdrawn. Therefore, it is submitted, it does not follow that because of the Respondent's failure to comply with orders of the Tribunal a hearing could have been avoided entirely.

35. In relation to the delay in the service of the remitted Decision and further evidence, the Respondent submits that at its highest, the delay resulted in the case conference held on 6 April 2020 to proceed as originally ordered on 9 March 2020. The practical effect of the service of that material was to provide the Applicants with a copy of two additional documents, including one that the Applicants already had.

36. Section 53 of the GIPA Act requires an agency to undertake searches that are reasonable searches of a particular case. The Respondent submits that this is not a case where extensive records are held. After further searches were undertaken only four additional documents were located.

37. The Respondent submits that at the time of the original decision it had not consulted with the informant in relation to the proposed disclosure of her personal information. The Respondent had attempted to contact the informant so as to consult with her without success and ultimately determined that, in the circumstances, the public interest considerations in favour of disclosure outweighed those against at the time of making the remitted decision. The Respondent submits that the public interest considerations for and against disclosure may change over time and that may lead to a different decision. The Respondent submits that this is consistent with the objects of the GIPA Act.

38. The Respondent rejects the Applicants’ contention that its conduct lead to the Applicant's need to engage counsel to cross-examine the Respondent's witness. It says that Chief Inspector Heaney’s evidence had been served in October 2019 and that the Applicant's decision to engage external legal advisors and counsel cross-examine was taken independently of the Respondent's conduct in relation to the matter.

39. The Respondent submits that the Applicants have not demonstrated that special circumstances exist such that the Tribunal should exercise its discretion and award of costs under section 60 of the Act.

Discussion

40. This is a matter in which the Respondent repeatedly breached orders made by the Tribunal. For the most part, no reasonable explanation has been provided for that failure. This failure is in a context in which the obligations of a “model litigant” apply. The Respondent is expected to adhere to standards of fair dealing in the conduct of litigation.

41. These are issues that can be taken into account in determining a cost application to which section 60 of the Act applies. Edward Lees Imports Pty Ltd v Commissioner of Fair Trading; Commissioner of Fair Trading v Edward Lees Imports Pty Ltd [2019] NSWCATAP 134 (“Edward Lees Imports”) at paragraph [411].

42. In Edward Lees Imports the Tribunal’s Appeal Panel stated in regard to the consideration of section 60 of the Act:

Decision on substantive challenge to the Costs Decision

1. Insofar as a party in proceedings in the Tribunal is one to which the obligations of a “model litigant” apply, in our view the conduct of that party in the context of its obligations as a model litigant is a factor which the Tribunal can have regard to in determining a cost application to which s 60 of the NCAT Act applies.

2. In [Mahenthirarasa v State Rail Authority Of New South Wales (No 2) [2008] NSWCA 201] Basten JA referred to a number of decisions concerning the obligations of a model litigant which are relevant to note in the present case. These included The Melbourne Steamship Co. Ltd v Morehead [1912] HCA 69; 15 CLR 333 and the comments of Griffiths CJ therein. Basten JA said at [16]:

   In this State, the relevant principles as to the proper role of the executive government were succinctly stated by Mahoney J in P&C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSW LR 366 at 383 in the following terms:

   “the duty of the executive branch of government is to ascertain the law and obey it. If there is any difficulty in ascertaining what the law is, as applicable to the particular case, it is open to the executive to approach the court, or afford the citizen the opportunity of approaching the Court, to clarify the matter. Where the matter is before the court it is the duty of the executive to assist the court to arrive at the proper and just result”.

3. The duties imposed upon a model litigant during the course of proceedings require it to act in a manner to assist a court or tribunal to arrive at the proper and just result. In this regard, the notion of “fair play” as referred to by Griffiths CJ in Melbourne Steamship at 342 is relevant, affecting both the content of the evidence and submissions made and the manner in which any proceedings are conducted. The fact that the proceedings are administrative review proceedings does not affect this position, particularly when it is remembered that the obligation upon the Tribunal is to make the correct and preferable decision, an obligation which the model litigant would wish to ensure is met.

4. Further, and in any event, such obligations overlap with the specific factors in s 60(3) which are to be taken account in determining whether special circumstances exist warranting an award for costs.

5. Finally, having regard to the expectations of an opponent of a model litigant, it would be a relevant factor under s 60(3)(g).

6. That is not to suggest that a breach of an order of the Tribunal by a model litigant would necessarily result in circumstances warranting an order for costs. Rather, an examination is required of all the facts to determine whether what has occurred is out of the ordinary and that an order for costs is warranted.

7. In reviewing the exercise of discretion by the Tribunal in awarding costs, in our view it is inappropriate for us to undertake a minute examination of what has occurred throughout the history of these proceedings. Prima facie, the Tribunal has examined the conduct of the respondent and determined that, at particular times of the proceedings, that conduct has resulted in relevant disadvantage or has caused the proceedings to be prolonged.

   43. In Mahenthirarasa at paragraph [19] Basten JA referred to comments by the Full Court of the Federal Court in Scott v Handley [1999] 58 ALD 373 and noted:

8. After referring to Moorehead and Cantarella, their Honours noted that the principles were stated at a level of broad generalisation, and that “the burden of this fair dealing standard is best appreciated in its particular exemplifications in individual cases”: at [45]. They continued:

   “[46]   In the present instance the second respondent (i) was in a position of obvious advantage in relation to unrepresented litigants; (ii) was significantly in default in complying with procedures designed to secure the fair and orderly preparation of the matter for hearing; (iii) served the affidavits on the appellants at an extremely late date with a consequential likely impairment of their capacity to prepare properly for a final hearing; (iv) did not inform his Honour of the default and of its possible consequences; and (v) took advantage of the inability of the appellants to articulate properly the basis for, and to secure, an adjournment. In our view the conclusion is inescapable that the second respondent has fallen considerably short of the standard properly to be expected of the Commonwealth.

   44. In this matter, the Applicants were initially self-represented. The Respondent was in a position of obvious advantage in relation to unrepresented litigants; was significantly in default in complying with procedures designed to secure the fair and orderly preparation of the matter for hearing; and served material on the Applicants at an extremely late date with a consequential likely impairment of their capacity to prepare properly for a final hearing. The Respondent did not approach the Tribunal to clarify the matter in the manner contemplated by the Appeal Panel in Edward Lees Imports. These are factors to which the Tribunal can have regard in determining a cost application: section 60(3)(g) of the Act.

   45. I also note that a consequence of the Respondent’s failure to comply with orders made by the Tribunal has been a failure to comply with the duty imposed by section 36(3) of the Act.

   46. However, I agree with the Respondent that “costs” that the Tribunal can order to be paid under section 60(2) will not include compensation for time spent by a litigant who is not a lawyer in preparing and conducting his or her case: Hammond v Ozzy’s Cheapest Cars at paragraphs [107] – [108]. Costs are awarded by way of indemnity or partial indemnity for professional legal costs actually incurred in the conduct of litigation. They were never intended to be comprehensive compensation for any loss suffered by a litigant. There may be costs of advice that a litigant has incurred of which the Tribunal is unaware.

   47. I also agree with the Respondent’s contention that the fact that additional information was located and disclosed to the Applicants during the course of the proceedings does not necessarily lead to a finding that the original search was not reasonable as is required by section 53 of the GIPA Act. However, in the circumstances of this case it is apparent that the information that was ultimately located could have been located if more thorough searches had been conducted earlier in the proceedings. Nevertheless, I agree that it is not out of the ordinary for additional information to be located and released to an access applicant in the course of review proceedings commenced under the GIPA Act.

   48. I agree that this is clearly a less than ideal situation from the Applicants’ perspective but is not completely at odds with the objects of the GIPA Act. In my view, in the circumstances of this matter, it does not amount to special circumstances which would result in an award of costs.

   49. I do not agree with the Respondent’s contention that there was only minimal consequence from the failure to comply with the timetable in regard to the remitted decision. I accept that the failure resulted in the Applicants incurring unnecessary cost of preparing for the hearing.

   50. It is not in dispute that the decision was not provided to the Applicants until late on the business day prior to the 6 April 2020 hearing date or that documents disclosed as a result of the decision were not provided at that time. If the Respondent had complied with the timetable in regard to the remitted decision, the Applicants would not have incurred expenses in making enquiries with the Respondent and the Tribunal in regard to that failure. I also accept that the Applicants were not in a position to decide whether to withdraw the application until they had received all the material that was released pursuant to the remitted decision. If the information had been provided on 3 April 2020, some expenses that were incurred in preparing for the hearing would not have been incurred.

   51. In my view, the Respondent should pay the Applicants’ costs that were incurred in relation to making enquiries with the Respondent and the Tribunal in regard to the Respondent’s failure to comply with the timetable in regard to the remitted decision. The Respondent should pay the Applicants’ costs that were incurred in relation to preparing for the hearing from the time that the Applicants were given the remitted decision.

   52. I am of the view that, in default of agreement, it is preferable that a fixed sum costs order be made so that the parties avoid the expense and inconvenience of having costs assessed by an external costs assessor. However, I have no basis for determining a fixed sum costs order.

Orders

1. The Respondent is to pay the Applicants’ costs of the proceedings from 20 March 2020, as discussed in these reasons, in an amount not exceeding $1,000.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 02 July 2020