McEwan v Port Stephens Council (No. 2)

[2022] NSWCATAD 308

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

McEwan v Port Stephens Council (No. 2) [2022] NSWCATAD 308

Hearing dates:

On the papers

Date of orders:

20 September 2022

Decision date:

20 September 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

The applicant is to pay the respondent’s costs of the Miscellaneous Application as agreed or assessed.

Catchwords:

ADMINISTRATIVE LAW – costs - special circumstances warranting the award of costs – exercise of discretion to costs

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Administrative Decisions Review Act 1997 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Cases Cited:

203 Castlereagh Street Pty Limited v Skybloo Holdings Pty Limited [2017] NSWCATAP 29

AIN v Medical Council of New South Wales [2015] NSWCATAP 241

AX and AY v Wesley Dalmar [2008] NSWADT 231

Abdel-Messih v Wang (No 2) [2018] NSWCATAP 209

Ashby v Commonwealth (No 4) (2012) 209 FCR 65; (2012) 300 ALR 611; 229 IR 402; [2012] FCA 1411 at [4]

Asia Invest Enterprises Pty Ltd v Bircan (No 2) [2019] NSWCATAP 232

Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1987) 30 NSWLR 359 at 362.; (1992) 10 ACSR 537; 30 NSWLR 359

Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12 at [4]

Cairns Port Authority v Albietz [1995] 2 Qd R 470

Cleverley v Harness Racing New South Wales [2021] NSWCATAD 281

Cleverley v Harness Racing New South Wales (No 2) [2022] NSWCATAD 160

Council of the Law Society of NSW v DXW [2019] NSWCATOD 101

Cripps v G & M Dawson Pty Ltd [2006] ANZ Conv R 350; [2006] NSWCA 81

FAI General Insurance Co Ltd v Burns [1996] NSWSC 350

Hillebrand v Penrith Council [2000] NSWSC 1058

Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75; [2009] HCA 43

Maule v Liporoni (No 2) [2002] NSWLEC 140

McEwan v Port Stephens Council [2017] NSWCATAD 269

Mendonca v Tonna [2017] NSWCATAP 176

O'Keefe v Hayes Knight GTO Pty Ltd [2005] FCA 1559

Packer v Meagher [1984] 3 NSWLR 486; [1984] 3 NSWLR 486

Palmer v Gold Coast Publications Pty Ltd; Palmer v McCarthy [2013] QSC 352

Port Stephens Council v Webb [2021] NSWCATAD 180

Rose v Richards [2005] NSWSC 758

Rouse v Shepherd (No 2) (1994) 35 NSWLR 277; 35 NSWLR 277

Stokes (by a tutor) v McCourt [2013] NSWSC 1014

Ung v Golden Century Property Investments Pty Ltd [2018] NSWCATCD 56

Webb v Port Stephens Council [2020] NSWCATAP 152

Webb v Port Stephens Council [2019] NSWCATAD 47

Wentworth v Rogers No. 5 (1987) 6 NSWLR 534; 6 NSWLR 534

Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34

Texts Cited:

N/A

Category:

Principal judgment

Parties:

Paul McEwan – Applicant
Port Stephens Council - Respondent

Representation:

Solicitors:
T Webb (Agent) (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2016/00378193

Publication restriction:

Nil

Judgment

1. This is an application by Port Stephens Council (the respondent) for an order that Paul McEwan (the applicant) pay its costs of the proceedings pursuant to section 60 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act).

2. The substantive proceedings were commenced in 2016, in which the applicant and his agent each lodged applications for review of decisions made by the respondent under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act). The Tribunal made orders for the matters to be heard together and evidence in one to be evidence in the other and directed that evidence given in prior proceedings could be used in those matters.

3. On 27 March 2019, Senior Member Hamilton SC finally determined the substantive matters and made the following non-publication orders: Webb v Port Stephens Council [2019] NSWCATAD 47:

1. The order made in the hearing that part of the hearing be conducted in private is confirmed (s 49(2) CAT Act).

2. Pursuant to s 64 CAT Act it is ordered that:

a. the publication of evidence given before the Tribunal in private, and of matters contained in confidential documents received in evidence by the Tribunal, and of the transcript of the private hearing; and

b. the disclosure to applicants in the proceedings of confidential evidence given before the Tribunal, and of the contents of a confidential document received in evidence by the Tribunal, and of the transcript of the private hearing,

be prohibited.

4. On 21 February 2022, the applicant filed a Miscellaneous Application (the current application), which sought revocation of the non-publication orders made on 27 March 2019. The respondent opposed the application.

5. On 9 May 2022, the Tribunal determined the Miscellaneous Application after dispensing with a hearing under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), and dismissed it.

6. On 10 May 2022, the respondent’s solicitor wrote to the Tribunal seeking an order for costs of the miscellaneous application against the applicant.

7. On 31 May 2022, the applicant filed a Notice of Appeal seeking to appeal the decision dated 10 May 2022.

8. On 14 September 2022, the Appeal Panel refused to grant the applicant leave to appeal and dismissed the appeal.

Dispensing with a hearing

9. Section 50(2) of the NCAT Act provides that the Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

10. On 19 July 2022, on 19 July 2022, the Tribunal ordered: (1) the respondent to file and serve any submissions in relation to the application for costs by 12 August 2022; (2) the applicant to file and serve any submissions in reply by 26 August 2022; and (3) reserved the application for costs for determination on the papers after 26 August 2022. These orders were made in accordance with s 50(3) of the NCAT Act,

11. The respondent subsequently filed and served its submissions.

12. However, while the applicant also filed and served submissions, this was done in relation to the appeal matter. As the submissions clearly respond to this application for costs, I have decided to consider them in this matter as the applicant has not otherwise responded to the orders dated 19 July 2022.

Applicable legislation

13. Section 60 of the NCAT Act provides:

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.

14. Section 36 of the NCAT 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.

(2) The Tribunal must seek to give effect to the guiding principle when it—

(a) exercises any power given to it by this Act or the procedural rules, or

(b) interprets any provision of this Act or the procedural rules.

(3) 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.

(4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.

(5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.

15. As can be seen from the terms of subsection 60(1) of the NCAT Act, the starting point in an application for costs is that each party pay its own costs. Subsection 60(2) gives the Tribunal discretion to award costs if it is satisfied that there are “special circumstances warranting the award of costs.” That is, even if the Tribunal is satisfied there are special circumstances, the Tribunal must also be satisfied that such circumstances warrant an award of costs.

16. Subsection 60(3) specifies the matters to which the Tribunal may have regard when considering whether or not special circumstances exist.

17. The expression "special circumstances" was considered by the Court of Appeal in the context of s 88(1) of the Administrative Decisions Tribunal Act 1997 (NSW). Section 88 is similar to s 60 of the NCAT Act. 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 Santow JA, with whom Mason P and Brownie AJA agreed, said:

60. On the one hand, the Tribunal correctly concluded that the respondent, through no fault of its own, has been placed in the situation where it has been forced to pursue this litigation. Yet it still failed to find special circumstances. With respect, I consider that the Tribunal was in error in failing to conclude that special circumstances here applied. For this purpose, 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.

The Respondent’s case

18. The Respondent submits that the following actions of the Applicant, either independently or together, give rise to ‘special circumstances’ in this case, warranting an award of costs:

1. The application was brought for improper purposes and was an abuse of process;

2. The application was without merit and lacking in substance; and

3. The applicant failed to comply with the duty imposed by s 36 of the NCAT Act.

19. The Respondent relies on the evidence of Ms Adriana Maria Kleiss affirmed 1 June 2022.

20. The applicant has not objected to the tender of this evidence and I have therefore admitted it into evidence and marked it as Exhibit C1.

21. I note that Ms Kleiss is a solicitor employed by the respondent’s solicitors. She annexed a copy of the Fee Ledger for the law firm in relation to the Miscellaneous Application and preparation of her affidavit, which indicates total fees of $11,841 (excluding GST), which comprised $7,996 until 9 May 2022 and $3,845 with respect to the period from 9 May 2022 to the date of her affidavit. She also annexed a copy of the webpage “Costs assessments – forms and fees” published by the Supreme Court of NSW.

22. Ms Kleiss also stated that she conducted a Google search on the applicant’s agent and identified a website – “NSW Freedom of Information”. She stated, relevantly:

5. …Within that site I identified a “media release” dated 9 May 2022 titled “Law Governance Manager Fails in Pleadings for Anonymity in the NSW Civil and Administrative Tribunal, 09 May 2022.” Annexed hereto and marked “C” is a copy of that media release. I observed that the medical release contained hyperlinks to the respondent’s submissions on the application and the applicant’s evidence in the application.

6. On 1 June 2022 I followed the hyperlinks in the media release which took me to the webpage that is annexed hereto and marked “D”.

23. The respondent argues that the Miscellaneous Application was brought for improper purposes and was an abuse of process because it was filed:

1. To relitigate previous decisions made by the Tribunal in respect of the GIPA Act dispute between the parties and to obtain access to information that was withheld from the applicant by order of the Tribunal through a “back door”; and

2. To ventilate unsubstantiated serious allegations of dishonesty and misconduct against the respondent’s staff in a public forum.

24. In relation to (1) above, the respondent argued that the procedural history and background to the Miscellaneous Application set out at paragraphs [1] to [3} and [25] to [34] of the Tribunal’s decision is also relevant to the issue of costs. The Tribunal considered the procedural history of the dispute between the parties to be of particular relevance to the Miscellaneous Application. In particular, the tribunal detailed the decision of the Appeal Panel in Webb v Port Stephens Council [2020] NSWCATAP 152, in which the Tribunal confirmed that it did not have jurisdiction to review the remittal decision made by the Council following the final determination by Senior Member Hamilton SC on 27 May 2018.

25. The respondent argued that the Miscellaneous Application was a veiled attempt by the applicant to secure information that was withheld from him following the determination dated 27 May 2018. In particular, the respondent cited the following passages from the Tribunal’s decision dated 9 May 2022:

17(d) At [38] of the Judgment the Senior Member relevantly finds:

38. In my view, the applicant now seeks to overcome the Tribunal’s lack of jurisdiction to administratively review the respondent’s post-remittal decision by seeking access to information that was withheld by reason of the that decision by means of the revocation of the non-publication order.

(e) At [55](4) the Senior Member repeats the conclusion of the Appeal Panel:

The case law establishes that if the applicant remains aggrieved by the respondent’s post-remittal decision, which certainly appears to be the case given the nature of his evidence and submissions in the current application, he must restart the GIPA Act process. In other words, he must file a further access application with the respondent under the GIPA Act.

26. The respondent also argued that it will be clear to the Tribunal, that the procedural history of the matter indicates a persistence by the applicant to re-

17(g) The application, made under the guise of s 64(3) of the NCAT Act, was a hopeless case intended to circumvent previous rulings of the Tribunal, and was for that reason wrong in principle and a mere experiment, which the respondent should not be required to pay for.

27. In relation to purpose (2), the respondent argued that it is clear that the evidence and submissions filed by the applicant in support of the Miscellaneous Application were, for the most-part, an attack on the respondent’s staff and particularly its Governance Section Manager, Mr Wickham. That this was a key purpose, if not the predominant purpose, is confirmed by the opening paragraphs of the applicant’s submissions filed 11 March 2022:

1. The applicant respectfully directs the Tribunal to the (then) Attorney General George Brandis’ statement of 27^th February 2015:

In a democracy, it is not character assassination to call a public official to account, not subject their performance to public scrutiny.

2. In the context of this Miscellaneous Application the public official in this matter is Port Stephens Council’s Governance Manager Tony Wickham and Head of Legal Services Lisa Marshall, both of whom have full knowledge of the facts, matters and circumstances of this matter…

28. At para 20 of the Decision dated 9 May 2022, the Tribunal found that this evidence was irrelevant to the real issues and should not be admitted:

20. …In my view, the applicant’s evidence in support of allegations of misleading and/or deceptive conduct by the respondent and/or Mr Wickham are not relevant to the issues that I must determine in relation to the current Application. Accordingly, I reject the tender of the Affidavit to that extent that it contains evidence of that nature.

29. The respondent stated that the fact that the applicant was motivated to ventilate unsubstantiated serious allegations of dishonesty and misconduct against Mr Wickham is further supported by a media release published on 9 May 2022 by his agent (Telina Webb) following the Tribunal’s decision. The media release is annexed to the affidavit of Ms Kleiss and it contains hyperlinks to extracted paragraphs from the respondent’s submissions in relation to the Miscellaneous Application and the applicant’s evidence.

30. The respondent argued that “abuse of process” can take many forms, but the categories of what it amounts to are not closed: Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75. Some examples are:

1. An attempt to re-litigate issues that have already been determined in previous proceedings: Stokes (by a tutor) v McCourt [2013] NSWSC 1014; and

2. Bringing proceedings for the purpose of causing significant public, reputational and pollical damage: Ashby v Commonwealth (No. 4) [2012] FCA 1411 (Ashby).

31. In Ashby, the Court said (at [4]) the following in relation to abuses of process (emphasis added):

Proceedings that are seriously or unfairly burdensome, prejudicial or damaging, or productive of serious and unjustified trouble and harassment are examples of abuses of process. So too are proceedings where the Court’s process is employed for an ulterior or improper purpose, or in an improper way, or in a way that would bring the administration of justice into disrepute among right-thinking people: at [27] – [38]. In Williams v Spautz (1992) 174 CLR 509 at 529 Mason CJ, Dawson, Toohey and McHugh JJ held … that a party who alleged that a proceeding had been brought, or was being prosecuted, as an abuse of process had to show that the predominant purpose of the other party in using the legal process “has been one other than for which it was designed.”

32. The case of Maule v Liporoni (No 2) [2002] NSWLEC 140 related to an application for costs under s 69(2) of the Land and Environment Court Act in which Lloyd J made an order for costs against the applicant on an indemnity basis. At [39] his Honour made the following relevant comments (emphasis added):

The applicant’s allegation of mala fides was made “on suspicion” without any basis for doing so and without any evidence to support such allegation. In my opinion, the making of a serious allegation of mala fides without evidence to support it is equivalent to making allegations of fraud without any basis, amounts to an abuse of process and is deserving of the severest condemnation. The respondents, moreover, were self-evidently put to considerable trouble and expense in meeting the applicant’s groundless claims. As in Degmam Pty Ltd v Wright the applicant so conducted herself by multiplying allegation upon allegation, thereby causing the other parties to incur liability for solicitor and client costs far beyond what they could reasonably expect to incur in litigation of genuine issues. As in Fountain Selected Meats the applicant persisted in her claims that had no chance of success and so must be presumed to have brought or continued the proceeding for some ulterior motive, or because of some wilful disregard of the known facts or the clear established law. Even if the applicant’s conduct could not be so described, her conduct was clearly unreasonable.

33. In relation to its assertion that the Miscellaneous Application was without Merit, misconceived and lacking in substance, the respondent relied upon the Tribunal’s reasons as follows:

1. The applicant’s submissions and evidence provided no tenable basis for supporting it; and

2. The submissions and evidence filed by the applicant were irrelevant to the real issue for determination, which was whether there was any extraordinary or circumstances for the Tribunal to revoke its previous non-publication orders.

34. While lack of merit or substance alone may be insufficient to amount to “special circumstances”, the respondent argued that in this matter the absence of any relevant submissions or evidence from the applicant can be understood as being a consequence of the Application having been brought for improper purposes because the applicant was concerned with matters other than the real issue for determination.

35. The respondent also argued that the applicant failed to comply with the duty imposed by s 36 of the NCAT Act. By filing submissions and evidence that did not address the real issue in dispute, and by attempting to re-agitate matters that had been determined and making serious and unfounded allegations, the applicant failed to cooperate with the Tribunal’s upholding of its guiding principle, which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

36. The respondent sought an order for costs on an indemnity basis. It relied upon the decision of Appeal Panel in Asia Invest Enterprises Pty Ltd v Bircan (No 2) [2019] NSWCATAP 232, which set out the principles to be applied in ordering indemnity costs, as summarised in Mendonca v Tonna [2017] NSWCATAP 176 (Mendonca). In Mendonca, the Tribunal held (emphasis added):

60. … one circumstance in which indemnity costs may be awarded is when a case is commenced or continued where there is no chance of success (Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12 at [4]), such as where the claim is “without substance”, “groundless”, “fanciful or hopeless” or so weak as to be futile, such as where a limitation period is obviously at an end: Hillebrand v Penrith Council [2000] NSWSC 1058. However, mere weakness of a case will not be sufficient to warrant an exercise of the discretion to award indemnity costs: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534. …

62. Another circumstance which may warrant an order for costs on an indemnity basis is where the proceedings amount to an abuse of process: Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359 at 362. Examples of abuse of process include where the proceedings are commenced other than in good faith or for an ulterior or collateral purpose: Palmer v Gold Coast Newspapers Pty Ltd [2013] QSC 352; Packer v Meagher [1984] 3 NSWLR 486 at 500…

63. An award of indemnity costs may also be made for unreasonable conduct. Such conduct may include unnecessarily prolonging the proceedings, (Degmam Pty Ltd (in liq) v Wright (No 2), at 358); unfounded allegations of fraud or improper conduct (Maule v Liporoni (No 2) (2002) 122 LGERA 216 at 229); deliberate or high-handed conduct (Rouse v Shepherd (No 2) (1994) 35 NSWLR 277) and behaviour which causes unnecessary anxiety, trouble or expense, such as the failure to adhere to proper procedure (FAI General Insurance Co Ltd v Burns (1996) 9 ANZ Ins Cas 61-384). Disregard of court orders may justify an indemnity costs order (O’Keefe v Hayes Knight GTO Pty Ltd [2005] FCA 1559 at [35]). Perverse persistence by an unrepresented litigant with a hopeless application may also do so: Rose v Richards [2005] NSWSC 758.

37. The respondent sought an order that costs totalling $11,841 paid by the applicant within 28 days of the order being made.

38. The respondent relied upon the decision of the Appeal Panel in 203 Castlereagh Street Pty Limited v Skybloo Holdings Pty Limited [2017] NSWCATAP 29, which set out the principles for when the Tribunal may exercise its discretion to make a fixed sum costs order as follows:

40. These principles, relevantly adapted to the circumstances of the Tribunal, include:

(1) A fixed sum costs order involves a departure from the usual process by which costs are assessed in accordance with the statutory procedures now relevantly found in the Legal Profession Uniform Law Application Act 2014 (NSW) (especially Pt 7 dealing with “ordered costs”) and the Legal Profession Uniform Law (NSW), eInduct Systems at [8];

(2) A fixed sum costs order may be appropriate where:

(a) the sum of costs in question is relatively modest, eInduct Systems at [30];

(b) a party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment, Hamod at [813], [816] and [817], eInduct Systems at [30];

(c) the assessment of costs would be protracted and expensive, Hamod at [813] and [817]; and/or

(d) the case was complex, Hamod at [815]-[817];

(3) Sections 36(1) and (4) of the NCAT Act (which can be seen as equivalent to those in ss 56(1), 57(1)(d) and 60 of the CP Act) suggest that the following factors merit particular consideration:

(a) the relative responsibility of the parties for the costs incurred;

(b) the degree of any disproportion between the issue litigated and the costs claimed;

(c) the complexity of the proceedings in relation to their cost; and

(d) the capacity of the unsuccessful party to satisfy any costs liability,

Hamod at [816], Kostov at [22].

39. The respondent referred to annexure B of Ms Kleiss’ affidavit, which sets out the scheduled fees related to the assessment of costs by a Costs Assessor. It argued that an estimate of $3,500 for Costs Assessor’s fees is likely and that this relates approximately 30% of the costs claimed on an indemnity basis. It concluded that it should not be required to pay additional costs of an Assessment and that the Tribunal can avoid this by making a fixed sum costs order.

The Applicant’s case

40. The applicant stated that the application for costs can only be classified as “deliberately punitive, designed to punish the appellant for exercising his fundamental rights in accordance with the legislation.” He stated, relevantly:

3. Punishment for exercising fundamental rights is extensively evidenced as standard operating procedure for Port Stephens Council.

4. In the case of Port Stephens Council v Webb [2021] NSWCATAD 180, [65]:

…She is also entitled to pursue legal remedies available to her…

5. The appellant’s Miscellaneous Application was a legal remedy that was available to him in accordance with the legislation and as such he was entitled to pursue that remedy.

6. Further, the matter at hand, that is the internal appeal, has yet to be determined and as such it is arrogant and presumptuous on the part of the respondent to prematurely anticipate that the appellant should be somehow punished for exercising those rights.

7. The Miscellaneous Application for the Revoking of Orders of McEwan v Port Stephens Council [2017] NSWCATAD 269 is a valid application to the Tribunal, and as such falls within the jurisdiction of the Tribunal, as is clearly outlined within the legislation.

8. Firstly, the Tribunal is respectfully requested to agree that the Miscellaneous Application was one of public interest…

41. The applicant then repeated a long list of grievances and allegations against the respondent in general and Mr Wickham and Ms Marshall in particular, which were not relevant to the determination of the issue in the Miscellaneous Application and I have decided that it is not appropriate to report these in a public forum. However, those submissions that are not of that nature are set out below:

14. The exercising of legal rights is not an offence, unless the responding party is Port Stephens Council.

15. In the case of Oshlack v Richmond River Council (1998), the High Court of Australia made clear that the awarding of costs in a public interest case was not in fact in the public interest, (69):

Thus, the Court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation, unnecessarily protracts the proceedings…

16. There can be no disputing this Miscellaneous Application is one of public interest. It concerns a member of the public and the unjust judicial process he was subjected to through no fault of his own, but through the direct fault by conscious decision of NSW government agency executive personnel.

…

20. Every aspect of the appellant’s case, from its commencement with Council in February 2015 to date, has been unnecessarily protracted, intended to invite litigation, but which it now asserts blame for on the appellant. ICAC v Karkowski, 9\(39), speaks directly concerning Local Government Employees:

Substitute “officer of local government” for police officer and view such conduct from the perspective of sections 439-440 and the Code of Conduct set out in Schedule 6A of the Local Government Act 1993 and the community will readily understand that they are entitled to expect the highest standards of those employed on their behalf.

…

23. The issue of costs was discussed in the case of Cairns Port Authority v Albietz (1995) 2 Qd R 470, (470) stated:

Too rigid an application of the ‘loser pays all’ approach might adversely impact upon the effectiveness of judicial review as a remedy.

24. An applicant should never be placed in the position of questioning whether he or she should seek a rightful judicial review as a remedy for far ot financial punishment and / or retaliation for exercising that right.

25. Despite the obvious that has now been presented repeatedly and accurately to the Tribunal concerning the conduct of Port Stephens Council, and what has brought the appellant to the Tribunal, the Tribunal repeatedly makes clear each party is to pay their own costs.

26. The applicant has paid his own costs.

27. The appellant has continually contributed to the costs of the proceedings on the part of the respondent by meeting his taxation commitments.

28. Port Stephens Council has been paid by the community at large.

29. An application for costs is in effect double-dipping and an abuse of process.

30. The responsible Local Government personal have not paid any costs themselves, but have instead conveniently accessed and used monies from the public’s purse.

…

36. In Council of the Law Society of NSW v DXW [2019] NSWCATOD 101, Francis Marks made clear (56):

…They are not to be regarded as unsophisticated members of the community with limited literacy skills and a limited understanding of the statutory regimes in which they are operating…

…

40. It is a disgraceful abuse of position and authority to use that which the public has sweated to provide for the benefit of the community, the public purse, for personal use.

41. Public monies are NOT for the personal use of government employees as a matter of convenience and for avoiding accountability and responsibility.

…

44. The fees incurred thus far by the appellant in these proceedings may be referred to in closing submissions at the hearing.

45. The Tribunal should dismiss the application for costs by the respondent.

46. Any reasonable person, including any member of the NSW Civil & Administrative Tribunal, would agree that the appellant has suffered, endured and overcome insurmountable odds, without any legal representation whatsoever, whilst simply exercising his fundamental right to judicial review and process, at all times acting completely within the law and not at any time making any false or misleading representation to gain ground or advantage of any person or organisation, nor has he hidden himself in the shadows and out of sight,

47. This is not something that should be punished.

48. The appellant naturally expects the respondent’s solicitor would in fact be totally embarrassed to be making submissions concerning such a claim for financial reimbursement.

Discussion

42. The Tribunal may exercise its discretion to make an order for costs under section 60(2) if it is persuaded that special circumstances exist that warrant an order for costs.

43. The issue of a costs order was recently considered by Senior Member Montgomery in Cleverley v Harness Racing New South Wales (No 2) [2022] NSWCATAD 160.

44. The Senior Member observed that a costs order is compensatory, not punitive. The costs power should not be used as a sanction to punish applicants for improper conduct or as a deterrent. However where one party forces its opponent to incur costs that would otherwise not have been necessary or reasonable, it may well be appropriate, regardless of any other circumstances, to award costs against the indulged party: AX & AY v Wesley Dalmar and Ors [2008] NSWADT 231. I agree with and adopt his observations in this matter.

45. In this matter The Respondent relies upon ss 60(3)(c), (e), (f) and (g) of the NCAT Act.

Section 60(3)(c)

46. Section 60(3)(c) provides that in determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to “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”.

47. The respondent relies upon findings made by the Tribunal in its decision dated 9 May 2022. In particular, it argues that the application was brought for improper purposes and was an abuse of process, that it was without merit, that it was misconceived and that it was lacking in substance.

48. The applicant has not directly addressed s 60(3)(c) in his submissions. Instead he repeated a long list of grievances and allegations made against the respondent in general (and Mr Wickham and Ms Marshall in particular) that were the subject of his submissions and affidavit in support of the Miscellaneous Application. The Tribunal held that those submissions and evidence were not relevant to the issue in dispute and rejected the tender of the affidavit to the extent that it contained irrelevant evidence.

49. I note that when the applicant filed his Miscellaneous Application, he was aware that as a result of the Appeal Panel’s decision in Webb v Port Stephens Council [2020] NSWCATAP 152, that the Tribunal lacked jurisdiction to administratively review the remittal decision made by the respondent after the decision of Senior Member Hamilton SC dated 27 March 2019. As a result, he was on notice that if he wished to seek access to further information from the respondent under the GIPA Act, he would have to lodge a fresh GIPA application with the respondent.

50. However, the applicant instead chose to seek to obtain access to information that Senior Member Hamilton SC determined to be “confidential” for the purposes of s 64 of the NCAT Act in his 2019 decision, by applying to revoke that order. He now submits that seeking the revocation of the s 64 order was “a legal remedy that was available to him in accordance with the legislation and as such he was entitled to pursue that remedy.”

51. However, I reject that submission and I am satisfied that seeking the revocation of the s 64 order was not a “legal remedy” that was available to the applicant under either the GIPA Act or the NCAT Act.

Section 60(3)(e)

52. Section 60(3)(e) of the NCAT provides that in determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to “whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance”.

53. The respondent relies upon the Tribunal’s finding that the Miscellaneous Application was misconceived.

54. The applicant has not directly addressed s 60(3)(e) of the NCAT Act in his submissions. However, he instead submits that the Miscellaneous Application was one “of public interest” and that the High Court of Australia made it clear in Oshlack v Richmond River Council that awarding costs in a public interest case was not in fact in the public interest.

55. With respect to the applicant’s reliance on Oshlack, I note that the passage that he relies upon relates to the successful party effectively inviting litigation by its lax conduct or unnecessarily protracting the litigation.

56. In this matter, there is no evidence that the respondent invited the Miscellaneous Application by its conduct. On the contrary, the particular administrative review proceedings between the parties had been finally determined by Tribunal in 2019.

57. I have previously expressed the view that many of the applicant’s submissions in this matter are irrelevant to the issue of whether special circumstances exist such as to warrant an order for costs against the applicant under s 60 of the NCAT Act.

Alleged breach of duty under s 36(3) of the NCAT Act

58. The respondent submits that in filing the Miscellaneous Application, the applicant failed to comply with the duty imposed upon him by s 36(3) of the NCAT Act.

59. The applicant did not directly address this submission. However, he asserted that every aspect of his case, from its commencement in February 2015 to date has been “unnecessarily protracted, intended to invite litigation”, but that the respondent now asserts that he is to blame. This appears to be the only submission that comes close to addressing the obligation imposed by s 36(3) of the NCAT Act.

60. The applicant also complains that the respondent applied for costs before his appeal was determined, although the respondent was entitled to apply for a costs order as a result of the Tribunal’s decision dated 9 May 2022.

61. The applicant now complains at some considerable length that the respondent instructed external solicitors to represent it in these proceedings, while he was “unrepresented”. However, this is irrelevant to the matter before me.

62. The applicant further argued that he has contributed to the respondent’s costs of the proceedings by paying taxes, as the respondent is “been paid by the community at large”, and that this application for costs is “in effect double-dipping and an abuse of process”. I consider those arguments as being without merit and I reject them accordingly.

Section 60(3)(g) of the NCAT Act

63. Section 60(3)(g) provides that in determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to “any other matter that the Tribunal considers relevant”.

64. In my view, the fact that the applicant has again sought to ventilate a series of grievances, allegations and accusations that were held to be irrelevant in relation to the determination of the Miscellaneous Application, is a matter that may warrant the exercise of the discretion to make an award of costs.

Conclusion

65. For the reasons stated previously in this decision, I am satisfied that special circumstances exist that warrant an order for costs under s 60 of the NCAT Act.

66. I am also satisfied that the circumstances of this matter are such that I should exercise the discretion to make an order for costs.

67. However, I am not satisfied that it is appropriate to order costs on an indemnity basis and/or that a fixed-sum order should be made. In my view, the appropriate order is that the applicant should pay the respondent’s costs of the Miscellaneous Application as agreed or assessed.

Order

68. I order the applicant to pay the respondent’s costs of the Miscellaneous Application as agreed or assessed.

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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: 20 September 2022