Kiernan v Commissioner of Police, New South Wales Police (No. 3) (GD)

[2010] NSWADTAP 32

Appeal Panel - Internal

CITATION:	Kiernan v Commissioner of Police, New South Wales Police (No. 3) (GD) [2010] NSWADTAP 32
PARTIES:	APPELLANT Teresa Kiernan RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	089053
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	23 April 2010
DATE OF DECISION:	18 May 2010
BEFORE:	O'Connor K - DCJ (President); Fitzgerald K - Judicial Member; Antonios Z - Non-Judicial Member
CATCHWORDS:	Costs – Appellant’s application – Refused
DECISION UNDER APPEAL:	Kiernan v Commissioner of Police, New South Wales Police [2007] NSWADT 207; Kiernan v Commissioner of Police, New South Wales Police (No. 2) [2008] NSWADT 52
FILE NUMBER UNDER APPEAL:	063419
DATE OF DECISION UNDER APPEAL:	02/15/2008
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
CASES CITED:	Director-General, Dept of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 Kiernan v Commissioner of Police, New South Wales Police (No. 2) (GD) [2010] NSWADTAP 18 Kiernan v Commissioner of Police, New South Wales Police Force (GD) [2009] NSWADTAP 38 Mahenthirarasa v State Rail Authority of NSW (No 2) (2008) 72 NSWLR 273
REPRESENTATION:	APPELLANT In person RESPONDENT K Edwards, counsel / Minter Ellison
ORDERS:	Appellant’s application for costs refused

1 By decision published 26 March 2010, this Appeal Panel upheld part of the appellant’s appeal against a decision of the General Division of the Tribunal. See Kiernan v Commissioner of Police, New South Wales Police (No. 2) (GD) [2010] NSWADTAP 18 (26 March 2010). As, at an earlier stage in the proceedings, the agency had foreshadowed a possible costs application, the following directions were made:

Any application for costs by either or both parties, and submissions in support, to be filed and served within 28 days. Any reply to the application to be filed within a further 14 days. Unless a party requests an oral hearing, the decision will be made without holding a hearing, as permitted by s 76 of the Administrative Decisions Tribunal Act 1997 . If a party requests an oral hearing, the Registrar will arrange a preliminary hearing to consider that request.

2 The appellant applied for a costs order, and filed submissions on 8 April 2010. On 23 April 2010, the agency filed its submissions in reply to the appellant’s costs application. Although noting that it had ‘proper bases’ for seeking an award of costs, it chose not to make any application. There was no objection to the Appeal Panel making this decision without holding a hearing.

3 The Tribunal’s power to award costs is given by s 88 of the Administrative Decisions Tribunal Act 1997 (ADT Act) relevantly 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.

…

(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.

4 This case had a long history, as is recounted in the earlier decisions of the Appeal Panel, the No 2 decision already cited, and the No 1 decision, Kiernan v Commissioner of Police, New South Wales Police Force (GD) [2009] NSWADTAP 38.

5 Police took the appellant into custody overnight in March 2005. That event is the background to her access-to-documents application made 21 July 2006. On 27 November 2006 she applied to the Tribunal for review of the agency’s internal review decision.

6 In her submissions in support of her application, the appellant refers first to the obligation on government agencies to act as a model litigant. She refers to the history of the proceedings in the Tribunal, and various points at which she considers she was unfairly dealt with. She challenges various statements made to the Tribunal in the planning meeting and hearing process about the way in which the opportunities she was given under supervision to view the CCTV footage of her time in custody at the police station had been afforded.

7 The agency in reply submits that there are no findings either by the Tribunal at first instance or the Appeal Panel which might assist the appellant in making good her allegations about the conduct of the agency’s representatives in the course of the hearing process or in connection with the viewing sessions. The agency also refers to possible failures on the appellant’s part in not being present at hearings on two occasions. This matter is canvassed in the No 1 decision of the Appeal Panel.

8 We accept that a breach, or breaches, of model litigant principles might justify an order for costs. While this case has been drawn out, and vigorously contested by the parties, we do not accept that the agency breached model litigant principles: as to which see generally, Mahenthirarasa v State Rail Authority of NSW (No 2) (2008) 72 NSWLR 273; Director-General, Dept of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 at [96] per Basten JA (Hodgson, Tobias JJA agreeing); and Premier’s Memorandum 97-26 Litigation Involving Government agencies.

9 The original access-to-documents application was wide-ranging. The agency responded positively to part of it. By the time the dispute reached the final appeal hearing, it had narrowed considerably, though we accept that the matters that remained in dispute remained very significant for the appellant. The agency had afforded her controlled access to the tapes 52, 54 and 55. While the agency was ordered on appeal to give her uncontrolled access, the agency did advance a reasonably arguable basis for its view that the tapes contained exempt material, one that prevailed at first instance.

10 We are not disposed to depart from the ordinary principle that each party bear its own costs.

Order

Appellant’s application for costs refused.