McCabe (No 2) v Electoral Commissioner, State Electoral Office

[2003] NSWADT 58

CITATION:	McCabe (No.2) -v- Electoral Commissioner, State Electoral Office [2003] NSWADT 58
DIVISION:	General Division
PARTIES:	APPLICANT David McCabe RESPONDENT Electoral Commissioner, State Electoral Office
FILE NUMBER:	023264
HEARING DATES:	17 January 2003
SUBMISSIONS CLOSED:	02/26/2003
DATE OF DECISION:	03/19/2003
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:	Costs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Interpretation Act 1987 Land and Environment Court Act 1979 Parliamentary Electorates and Election Act 1912
CASES CITED:	McCabe v Electoral Commissioner, State Electoral Office [2003] NSWADT 24 Brooks Maher v Cheung [2001] NSWADT 18 Director General, Department of Education and Training v Simpson [2001] NSWADTAP 6 Graham v Director General, Department of Community Services [2001] NSWADTAP 4 Oshlack v Richmond River Council (1998) 193 CLR 72 Save Our Suburbs (SOS) NSW Inc v Electoral Commissioner [2002] NSWSC 735 Director General, Department of Education and Training v Mullett [2002] NSWADTAP 29
REPRESENTATION:	J Kirk, Barrister A Johnson, Solicitor
ORDERS:	1. The applicant's application for costs is refused.

Introduction

1 On 27 November 2002 Mr David McCabe applied to the Tribunal for the review of a decision made by the Electoral Commissioner, State Electoral Office, under the Freedom of Information Act 1989 (FOI Act). The decision was to refuse Mr McCabe access to a list of 300 randomly selected names and addresses of members of the Restore the Workers Rights Party (the Party.) The Electoral Commissioner had previously written to the 300 people to confirm that they were genuine members of the Party.

2 On 5 February 2003, the Tribunal handed down a decision in this matter (McCabe v Electoral Commissioner, State Electoral Office [2003] NSWADT 24). The background to the proceedings and the evidence adduced is set out in that decision. The Tribunal made the following orders:

1. The agency’s decision not to grant access to the document is set aside.
2. Applicant to file an application for costs and any submissions in support, within 14 days of the date of this decision.
3. Agency to file any submissions in reply within a further 14 days.
4. Any application for costs is to be decided “on the papers” pursuant to s 76 of the Administrative Decisions Tribunal Act
1997.

3 The applicant did file an application for costs, and the agency responded. In accordance with the Tribunal’s previous order, this application is to be decided “on the papers” pursuant to s 76 of the Administrative Decisions Tribunal Act 1997 (ADT Act).

Background to the application for costs

4 On 18 February 2002 Mr McCabe, who is the secretary of the Party, applied to the Electoral Commissioner to have the Party registered under the Parliamentary Electorates and Elections Act 1912 (PEE Act). Section 66G(2A) of the PEE Act empowers the Electoral Commissioner to conduct “tests or inquiries” to determine whether a party is eligible for registration. In order to determine whether a party has 750 members, s 66G(2A) gives the Electoral Commissioner power to test the genuineness of the membership.

5 In accordance with this provision the Electoral Commissioner randomly selected 300 members who had declared that they were members of the Party and wrote to them in March 2002, requesting that they confirm that they are members of the Party. Pursuant to s 66G(2A)(a) of the PEE Act and his own internal policy, the Electoral Commissioner requires a positive written response from 75% of the 300 members (225 members) before he is prepared to register the Party. It was not in dispute that receipt of a further 27 positive responses is the only barrier to the Party being eligible for registration.

6 Under s 88(1) of the ADT Act the Tribunal has the power to award costs but only “if it is satisfied that there are special circumstances warranting an award of costs.” The following general principles have been expressed in the cases:

Unless there are special circumstances, each party will bear their own costs;
Something more than mere success is required to justify an order for costs: Brooks Maher v Cheung [2001] NSWADT 18 at
[11]; Director General, Department of Education and Training v Simpson [2001] NSWADTAP 6 at [6]; and
The discretion in relation to costs is a broad one: Graham v Director General, Department of Community Services [2001]
NSWADTAP 4 at [33].

Applicant’s submissions

7 The applicant submitted that where an applicant in public interest litigation has been successful, but there is a restriction on the award of costs such as that set out in s 88, costs should be awarded in his favour. This proposition is derived from the decision in Oshlack v Richmond River Council (1998) 193 CLR 72 (Oshlack) where the High Court decided that factors such as the pursuit of the public interest may warrant some special costs order – such as an order that an unsuccessful applicant not be ordered to pay the other side’s costs.

8 In Oshlack, the appellant had opposed the consent granted by a council to a proposed development in order to preserve the habitat of endangered fauna on and around the development site. The question for the High Court was whether the appellant, who was unsuccessful, should be ordered to pay the respondent’s costs.

9 The costs provision under consideration was s 69(2) of the Land and Environment Court Act 1979. That provision stated that:

Subject to the rules and subject to any other Act:


(a) costs are in the discretion of the Court;
(b) the Court may determine by whom and to what extent costs are to be paid; and
(c) the Court may order costs to be taxed or otherwise ascertained on a party and party basis or on any other basis.

10 The applicant submitted that Gaudron and Gummow JJ at [49] approved of Stein J’s approach in taking the following three factors into account:

The appellant’s pursuit of the litigation was motivated by his desire to ensure obedience to environmental law . . .; he had
nothing to gain from the litigation “other than the worthy motive of seeking to uphold environmental law and the preservation
of endangered fauna”;
In the present case “a significant number of members of the public” shared the stance of the appellant as to the development to
take place on the site . . . . In that sense there was a ‘public interest’ in the outcome of the litigation.
The basis of the challenge was arguable and had raised and resolved “significant issues” as to the interpretation and future
administration of statutory provisions . . .

11 The applicant submitted that the last factor was not relevant as it relates to the appellant in that case having been unsuccessful. According to the applicant, these proceedings bear the character of litigation brought in the pursuit of the public interest and in the vindication of public rights. He quoted the following passage from Save Our Suburbs (SOS) NSW Inc v Electoral Commissioner [2002] NSWSC 735 at 32:

The plaintiff says that the right to participate fully in the political process, and in elections in particular, is a fundamental
implication of a democratic polity, so that a full opportunity to participate in elections is “a fundamental freedom” of the citizens
of this State. I agree with this submission, which accords with an understanding of the nature of a democracy that has endured
for well over 2000 years. In his “Democracy and participation in Athens” (1988) at 23, Professor R.K. Sinclair quoted the
observation of Aristotle that “a citizen is simply defined by nothing else so much as the right to participate in judicial functions
and in office”, pointing out that the term “office” for Aristotle “included all those functions which entailed the exercise of
power” including “membership of the Assembly”. In the modern era, the ability to participate through parties is essential to any
effective participation in the political process.

12 In summary, the applicant submitted that:

1. the applicant has succeeded in his application;
2. the applicant was seeking to vindicate a fundamental democratic right;
3. in seeking to do so the applicant was pursuing a public interest;
4. the applicant was not seeking merely to achieve some personal or economic gain;
5. the Restore the Workers Rights party has no independent resources;
6. there are plainly many NSW citizens who wish to be members of the Party; and
7. the entire NSW community has an interest in being offered a range of political policies and candidates.

Respondent’s submissions

13 The respondent submitted that the circumstances relied on by the applicant as “special” are the norm in FOI applications. The

objects of the FOI Act are to ensure that all members of the public have an enforceable right of access to documents, thus ensuring that

the information about the government is made available to the public: s 5 of the FOI Act and Director General, Department of

Education and Training v Mullett

[2002] NSWADTAP 29 at [55]. An applicant for documents under the FOI Act does not need a

special reason to obtain documents and may distribute them to the world at large. As such, all applications made under the FOI Act are

brought in pursuit of vindication of the public right to open and accountable government.

14 Secondly, applications under the FOI Act rarely, if ever, provide an economic return to the applicant. Damages are not available under the FOI Act and it is difficult to conceive of circumstances when documents provided under the FOI Act might provide an economic return.

15 Thirdly, in response to the applicant’s contention that he paid for the costs of the application himself, that too is consistent with the usual practice in FOI matters.

16 Finally, the respondent submitted that the decision of Oshlack is not relevant because the starting point in that case was that Mr Oshlack, as the unsuccessful party, should pay the costs of his appeal. In this case the statutory presumption is that each party should bear its own costs. The phrase “special circumstances” must be construed in the context of the ADT Act: s 34(1)(a) Interpretation Act 1987. The use of the phrase “special circumstances” in the judgement of Gaudron and Gummow JJ is of no assistance.

17 The provisions of s 69(2) of Land and Environment Court Act 1979, as interpreted by the High Court in Oshlack, are a mirror image of s 88(1) of the ADT Act. Gaudron and Gummow JJ, proceeded on the basis that the “usual” costs order is that costs follow the event unless there are “special circumstances.” The “usual rule” under the ADT Act is that each party bears their own costs unless there are “special circumstances” warranting an award of costs. The High Court’s consideration of what constitutes “special circumstances” sufficient to depart from the “usual rule” is relevant to the Tribunal’s consideration of the issue in this case.

18 Gaudron and Gummow JJ noted, at p 81 that the terms of s 69(2) “contain no positive indication of the considerations upon which the Court is to determine by whom and to what extent costs are to be paid.” Their Honours went on to say that the only restrictions on the exercise of the power are that it should not be exercised arbitrarily or capriciously or in a manner which is extraneous to any object the legislature could have had in view. The same observations apply to s 88(1) of the ADT Act.

19 At p 91, Gaudron and Gummow JJ endorsed Stein J’s remarks at first instance that something more than the categorisation of proceedings as public interest litigation was needed before a successful defendant should be denied costs. Stein J then referred to the three factors listed above as sufficient “special circumstances” to justify refusing to award costs against the unsuccessful party. The High Court endorsed that approach.

20 Although the applicant submitted that the third factor listed above was not relevant, the significance of the issues raised is relevant to the issue of costs whether or not the party is successful. We have taken these factors into account in assessing whether the applicant’s situation constitutes “special circumstances” warranting a costs order.

21 Firstly, it cannot be said that Mr McCabe’s pursuit of the litigation was motivated by a desire to ensure obedience to the law, per se. Mr McCabe is the secretary of the Restore the Workers Rights Party. He has devoted a considerable amount of time and money in attempting to have the Party registered. There was no evidence that he sought access to the document in question for selfless reasons. His application was primarily motivated by a desire to ensure that the Party obtained the benefits of registration. Any public interest benefit of obtaining access to the document is entirely incidental.

22 It is arguable, for the reasons outlined by the applicant, that other members of the Party, and perhaps the public in general, stand to benefit if the Party is registered. However the public interest in the outcome of the litigation is secondary to the personal interest of Mr McCabe and the members of the Party.

23 While Mr McCabe’s FOI application was “arguable” (indeed he was successful before the Tribunal) it did not raise and resolve “significant issues” as to the interpretation and future administration of the FOI Act.

24 Gaudron and Gummow JJ in Oshlack agreed with Stein J’s remarks at first instance that something more than the categorisation of proceedings as public interest litigation was needed before a successful defendant should be denied costs. Similarly something more is required before a successful applicant should be awarded costs. While there are public interests aspects to this case, those aspects and related considerations are not “special circumstances” sufficient to warrant an award of costs. As there were no other circumstances put to the Tribunal warranting an award of costs, I make no order as to costs.