McCabe v Workers Compensation Commission
[2012] NSWADT 74
•26 April 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: McCabe v Workers Compensation Commission [2012] NSWADT 74 Hearing dates: On the papers Decision date: 26 April 2012 Jurisdiction: General Division Before: N Isenberg, Judicial Member Decision: The Tribunal declines to make any order as to costs.
Legislation Cited: Administrative Decisions Tribunal Act 1997 Cases Cited: Challita v NSW Department of Education and Training [2009] NSWADTAP 70 Category: Costs Parties: David McCabe (Applicant)
Workers Compensation Commission (Respondent)Representation: McCabe Partners (Applicant)
Crown Solicitor (Respondent)
File Number(s): 113218
reasons for decision
Background
By letter dated 26 May 2011, the applicant sought access a series of categories of documents he believed the respondent held. Some documents were provided to him but other categories of documents were said not to be held by the respondent. The applicant sought review by the Tribunal. A series of planning meetings were held and the respondent agreed to search for further documents and some were located. The respondent's Manager, Executive Services, made 3 successive affidavits in relation to the ongoing searches.
As I identified in the decision, the applicant's complaint was that the search for the documents was inadequate. The applicant had no confidence that all relevant material had been provided, especially given the piecemeal provision of documents, and that it was only on further searching that additional documents were provided.
After hearing the respondent's evidence, I found that there were reasonable grounds to believe that there are additional documents and that the respondent did not undertake reasonable searches to find the documents.
The applicant seeks an order for costs. He acknowledged that the general rule is that each party bears his or her own costs, but invited the Tribunal to exercise it discretion to order otherwise if it were satisfied that it is fair to do so having regards to the matters set out in s.88 (1A) of the Administrative Decisions Tribunal Act 1997 (ADT Act). The respondent submitted that there was no reason to depart from the usual costs regime, namely that each party pay their own costs.
Law
Section 88 of the ADT Act provides:
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 compiy 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.
The Tribunal may:
a) determine by whom and to what extent costs are to be paid, and
b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.
3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.
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.
The proper approach to an award of costs in a merits review jurisdiction was considered by Spigelman CJ in Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300 at [79] ("Thaina Town") in the context of a review of a decision made under the Land and Environment Court Act 1979. His Honour said:
In my opinion, the usual position on a merits review that an appeal tribunal stands in the shoes of the primary decision-maker is a significant element in the practice of such tribunals not to exercise such power, if any, to award costs as are conferred upon them. Administrative decision-makers do not award costs. Where a judicial or quasi-judicial function is expressly placed in the position of such a decision-maker then it is more appropriate that it adopt the same general approach.
The Appeal Panel has observed in Challita v NSW Department of Education and Training [2009] NSWADTAP 70 at [57] which were proceedings concerning costs of a Freedom of Information application, that:
[i]n merits review proceedings in the Tribunal it is rare for there to be any application for costs, and the usual position is that the Tribunal gives no consideration to the issue.
Consideration
I have assumed that the applicant only seeks costs of the application to the Tribunal, as the Tribunal has no power to order costs in respect of conduct occurring prior to the commencement of the proceedings, only "in relation to proceedings before it": s. 88(A).
The applicant observed that the enquiries made by the respondent to locate documents in answer to his GIPA application were found by the Tribunal to be inadequate. He noted that there were 3 occasions when the respondent maintained that there were no documents to produce, when documents did exist, and that the effort made by the respondent to locate the documents was inadequate. As a result the applicant claimed to have been forced to incur costs.
The respondent submitted, and I agree, that there is no suggestion that the applicant had been disadvantaged by reason of the respondent's conduct contrary to any of the paragraphs (a) (i)-(vi), (b), (c) or (d) of s. 88(1A) apply to the respondent's conduct. There was no real submission by the applicant either in relation to s. 88A(1)(b)-(d) either. The submission is made, it seems, on the basis of 'fairness' and 'any other matter that the Tribunal considers relevant': s. 88A(1)(e).
I was referred to the matter of ADT v Commissioner of Police (2010) NSWCA 131, where Basten JA observed:
Although an order varying the general rule may be made "only if" the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order. The criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. The circumstances in which fairness maybe identified are indicated by the specific attributes listed in sub-s(1A), but subject to the generality of paragraph (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in 3(b) to (g) of the [ADT] Act.
The respondent submitted that at all times it had acted in the spirit of the GIPA Act. It noted, for example, that notwithstanding the application was incorrectly addressed to the President of the respondent, the respondent had nonetheless acted consistently with the purpose and objects of the GIPA Act and treated the application as if it were valid. Such conduct, in my view, is only appropriate.
The respondent also submitted that it had conducted numerous searches for a nominal fee and had its officer depose in 3 affidavits as to such searches. It submitted also that following the decision, it proposed to conduct further searches. I accept that ongoing searches for minimal fee may be seen by the respondent as onerous, but such is the legislative scheme. That 3 affidavits were required was because the respondent had to conduct further searches, which, demonstrated that there were in fact further documents that had not been initially located. That further searches will now be required is a direct result of the Tribunal's findings of the inadequacy of what had been undertaken.
While I found that the respondent had acted in good faith and that the respondent had provided the applicant with a number of documents, nonetheless I found that there were reasonable grounds to believe that there are additional documents and that the respondent should have done more to find them. The respondent submitted that it had been able to identify further documents as a result of further searches. It was unclear if this submission referred to its ongoing searches before the hearing, or if as a result of the Tribunal's decision. It was submitted that identification of further documents merely demonstrated the efforts made to comply with the GIPA application. This is only as it should be. It was also submitted that the additional documents did not add substantially to the documents already produced. This is irrelevant in that, if the documents fell within the scope of the applicant's application, then they should have been provided, other than in piecemeal fashion.
The submission of the respondent to which I have attached most weight though arises from its observation that, while it was open to the applicant to seek an internal review by the respondent, instead he chose the more expensive course of commencing proceedings in the Tribunal: s. 82 of the GIPA Act. Neither did the applicant make an application to the Information Commissioner: s. 87 of the GIPA Act. The respondent submitted that it is unreasonable that the respondent should bear the costs of proceedings brought in those circumstances. I accept that the respondent cooperated with the applicant throughout, albeit not to the applicant's satisfaction, and ultimately, not effectively. I found at [46] that there "nothing untoward about further searches being conducted and revealing further documents in these types of proceedings" but those may have been identified during the course of an internal review or in response to review by the Information Commissioner, but the respondent was denied the opportunity to do so. The applicant chose a more expensive avenue for his recourse.
I find that the respondent should not be penalised by a costs order.
Decision
The Tribunal declines to make any order as to costs.
**********
Decision last updated: 26 April 2012
0
2
1