McGuirk v Attorney General's Department

[2007] NSWADT 138

CITATION:	McGuirk v Attorney General’s Department [2007] NSWADT 138
DIVISION:	General Division
PARTIES:	APPLICANT Michael (Gerard) McGuirk RESPONDENT Attorney General’s Department
FILE NUMBER:	063263
HEARING DATES:	12 April 2007
SUBMISSIONS CLOSED:	12 April 2007
DATE OF DECISION:	25 June 2007
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Costs - Dismissal of application - frivolous vexatious misconceived or lacking in substance
MATTER FOR DECISION:	Preliminary matter Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Cianfrano v Director General, Department of Commerce and Anor (No 2) [2006] NSWADT 195 McGuirk v Director General, Attorney General’s Department [2006] NSWADT 265 University of NSW v McGuirk [2006] NSWSC 1362 Neary v The Treasurer, New South Wales [2002] NSWADT 261
REPRESENTATION:	APPLICANT In person RESPONDENT J. McDonnell, Solicitor
ORDERS:	1. The applicant’s application is dismissed under s.73(5)(h) of the Administrative Decisions Tribunal Act 1997; 2. There are no orders as to costs.

REASONS FOR DECISION

1 The respondent, the Attorney General’s Department, has made an application that the applicant’s (Mr McGuirk’s) application for review of a decision of the respondent under the Freedom of Information Act 1989 (‘the FOI Act’) be dismissed on the grounds that it was frivolous, vexatious and lacking in substance. That application was heard on 12 April 2004 and I reserved my decision.

Relevant legislation

2 Section 73 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’) makes provision for the procedure of the Tribunal generally. This section so far as it is relevant to this application provides as follows:

73 Procedure of the Tribunal generally

(1) The Tribunal may, subject to this Act and the rules of the Tribunal determine its own procedure.

(2) …

(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

(4) The Tribunal is to take such measures as are reasonably practicable:

(a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and

(b) if requested to do so—to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.

(5) The Tribunal is to:
(a) is to act as quickly as is practicable, and

(b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and

(c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and

(d) in the case of a hearing—may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and

(e) may require a document to be served outside the State, and

(f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and

(g) may dismiss at any stage any proceedings before it if the applicant withdraws the application to which the proceedings relate, and

(h) may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance.

(6) ….
3 The other relevant legislation is the FOI Act . That Act gives every person a legally enforceable right to be given access to an agency’s documents, subject to the provisions of the Act: see s.16(1) of the FOI Act. That right, is subject to such restrictions which are set out in the Act: for example see ss.9, 22, 25. These restrictions fall within the objects of the Act in that they are reasonably necessary for the proper administration of the Government: see s.5(2)(b) of the FOI Act.

4 S.25(1) of the FOI Act provides that an agency ‘may’ refuse access to an agency’s document that has been requested on the basis of one or more of the grounds set s.25(1)(a) to (d). One of these grounds is that a document is an ‘exempt document’ as prescribed in Schedule 1 of the FOI Act: ss. 6 and 25(1)(a). Included in the Schedule is a document which is subject to legal professional privilege: see cl.10 of Schedule 1. However, as explained above, s.25(1) gives an agency a discretion as to whether to refuse access to a document that is otherwise an exempt document.

5 The FOI Act requires an agency to determine an FOI request within 21 days after the application was received and a failure to do so is deemed to be a refusal to grant access to the documents requested: see s.24(2) of the FOI Act. This deemed refusal, as with a determination to refuse access on the grounds the document sought is exempt, gives rise to review rights by the FOI applicant: see s34 and 53 of the FOI Act. The first review right is an internal review request followed by a right to seek external review in the Tribunal if dissatisfied with the internal review determination.

History of applicant’s application

6 The decision for which the applicant has sought external review is a decision of the respondent, dated 30 May 2006, in which the respondent refused the applicant access to five documents for which he had sought access pursuant to the FOI Act. The grounds on which access was refused was that the documents in question were exempt under cl.10 of Schedule 1 of the FOI Act (i.e. exempt on grounds of legal professional privilege). The applicant had also sought access to specified correspondence between the Crown Solicitor and the NSW Ombudsman. In its decision of 30 May 2006, the respondent informed the applicant that it did not hold any documents that came within the description of this correspondence.

7 The matter first came before the Tribunal at a planning meeting on 16 November 2006. The applicant attended this meeting and the respondent was represented by Mr McDonnell, solicitor. On this occasion, the applicant confirmed the issues he had raised in his application. On this occasion, by consent, the Tribunal ordered the applicant to file and serve, on or before 29 January 2007, evidence which supported his contention that the respondent held correspondence between the Crown Solicitor and the NSW Ombudsman that came within the terms of his FOI request. Also by consent, the Tribunal adjourned the application to 15 February 2007 for a further planning meeting.

8 When the matter next came before the Tribunal on 15 February 2007, Ms N. Johnson, solicitor, appeared on behalf of the respondent, however there was no appearance by or on behalf of the applicant. On this occasion Ms Johnson informed the Tribunal that the five documents for which the respondent had refused access on the grounds they were exempt under cl.10(1) of Schedule 1 of the FOI Act, were the same documents that had been the subject of an earlier application for external review by the applicant and that the Tribunal had affirmed the decision of the respondent in regard to these documents: see McGuirk v Director General, Attorney General’s Department [2006] NSWADT 265 (‘earlier decision/file no 053361). That decision, Ms Johnson went on to say was the subject of an appeal that had been lodged by the applicant.

9 In light of this and the applicant’s failure to comply with the orders made on 16 November 2006, Ms Johnson submitted that the applicant’s application should be dismissed pursuant to s.73(5)(h) of the ADT Act. On the basis of these submissions, the Tribunal set the matter down for a show cause hearing on 12 April 2007. At the same time orders were made for the parties to file and serve evidence and submissions on which they sought to rely in regard to that hearing and the Registry of the Tribunal was directed to advise the applicant, in writing, of the orders that had been made.

10 On 1 March 2007, Registry wrote to the applicant advising him of the orders that had been made on 15 February 2007. On 20 March 2007 the applicant wrote a 4 page letter to the Tribunal and Ms Johnson stating that he was unable to comply with the orders that had been made and asserting that Ms Johnson had misrepresented the factual situation behind his FOI request that is the subject of this application. That factual situation being that the applicant had informed Ms Johnson of his intention to make a further FOI request immediately following the hearing of the earlier decision/file no 053361. That he had made this request and he and Ms Johnson had been engaging in correspondence in regard to that request after he had filed his current application for review. This correspondence I note preceded the first time the application came before the Tribunal on 16 November 2006. Ms Johnson, the applicant asserted had taken the opportunity of his absence on 15 February 2007 to press for the dismissal of his application without advising the Tribunal of the relevant background. In his letter the applicant also acknowledged that he had received a copy of a letter from the Registry on 5 March 2007 advising him of the orders that had been made on 15 February 2007.

11 On 11 April 2007, the applicant filed, by facsimile, a Notice of Motion in which he sought orders that the show cause hearing be dismissed on the basis that it was an abuse of process and that the proceedings be reconstituted, at a time to be arranged, as a preliminary conference. In his Notice of Motion, the applicant also sought various declarations and in the alternative to these declarations, he made an application that the Tribunal refer the matters the subject of the declarations to the Supreme Court under ss.118 and 131 of the ADT Act.

Hearing

12 At the hearing on 12 April 2007, the respondent relied on the material that had been filed and served on its behalf. That material included written submissions and copies of the applicant’s FOI request, the initial determination of the respondent, the applicant’s internal review request and the internal review determination of the respondent in respect to this application and the earlier application that is the subject of the earlier decision/file no. 053361.

13 The applicant pressed for the orders and declarations in his Notice of Motion and in support of these he submitted to the Tribunal a statement made by him and dated that day. In that statement the applicant asserted that he was ‘not well prepared for the hearing of the application’ due to numerous factors being his health, his legal studies and the fact that he had numerous proceedings on foot in the Tribunal and other courts in NSW. In his statement he also explained that he had been unable to attend the planning meeting on 15 February 2007 as he had been arrested that morning by police. He has at all times challenged the lawfulness of this arrest and attached to his statement a copy of his claim in regard thereto in the Supreme Court. Also attached to his statement was correspondence he wrote and sent to the Tribunal and Ms Johnson on 20 March 2007. .

14 At the hearing he also asserted that the respondent had at all times been aware of his inability to attend on 15 February 2007 and he asserted that the respondent’s failure to inform the Tribunal of this was a further deliberate act so as to mislead the Tribunal. It was on the basis of this evidence and that contained in his statement that the applicant sought to have the show cause hearing dismissed and declarations made in respect to the conduct of the respondent.

15 At the hearing the applicant also provided the Tribunal with a CD which was labelled as follows:

‘ADT General Division

McGuirk v Director General Attorney General’s Department

File Nos: 053361 & 053237

Audio Recording

Day 1 – 9 March 2006

Day 2 – 10 March 2006’

16 This CD the applicant contended was evidence that demonstrated that the respondent did in fact hold the correspondence between the Crown Solicitor’s Office and the Ombudsman that he had specified in his FOI request. Following the show cause hearing the applicant forwarded the following email message to the Registrar of the Tribunal:
‘Dear Registrar,

I attach to this email a 12 second extract from the audio recording of the proceedings before the Tribunal in the matters listed under ADT General Division File Nos. 053361 & 053237 from 10 March 2007 (the second day of the proceedings before the Tribunal in regard to these matters).

This extract can be found at approx. 16.45 on Tape 3A of 10 March 2006 on the CD which I tendered to the Tribunal and provided to the Crown Solicitor at the Tribunal this afternoon.

The transcript of this 12 second 'grab' is as follows:

Linwood: “I read the information and, eh … there was a wealth of it including material from the Ombudsman - which I also read. There was a lot of material.”

McGuirk: “And a lot more …”

Under part 2 of my FOI application of 12 March 2006 to which this matter refers I was seeking access to the "material from the Ombudsman - which I [Mr Linwood] also read".

The Crown Solicitor (per Mr McDonnell) claims that the material which Mr Linwood read does not exist.

I am confident that once Mr McDonnell is aware that he has been misled by Ms Johnson (and arguably also Mr Linwood) in regard to this matter, he will tender a formal apology to the Tribunal and agree to a costs order being made against the Crown Solicitor in regard to today's 'show cause' proceedings.

I would appreciate if you could provide Judicial Member Higgins, who has conduct of this matter, with a copy of this email as a matter of priority.

If you have any queries in regard to this matter, please do not hesitate to contact me.’

17 In respect to the five documents that have been identified by the respondent as coming within his FOI request and for which access was refused the applicant contended that the earlier decision/file no. 053361 had been decided prior to the decision of Nicolas J in University of NSW v McGuirk [2006] NSWSC 1362, in which His Honour held that contrary to the decision in Neary v The Treasurer, New South Wales [2002] NSWADT 261 the Tribunal, equally had available to it the discretion as set out in s.25(1) of the FOI Act when determining whether a decision of a public sector agency under the FOI Act was the correct and preferred decision. That is, even if the Tribunal is satisfied that a document is exempt it never the less has a discretion under s.25(1) to release the document sought to the FOI applicant. He went on to contend that his appeal from the earlier decision/file no 053361 would only allow him to rely on the ruling of Nicholas J if the Appeal Panel gave him leave to argue the merits. If no such leave were to be granted and his current application were to be dismissed he would be deprived of arguing this point in respect to the five documents that are the subject of this application.

Consideration

18 Although the Tribunal does not have any formal processes such as Notices of Motion, I treated the applicant’s notice as an application for the various orders sought therein, many of which were misconceived. Furthermore, many of the grounds relied on by the applicant to support orders he sought were not supported by any evidence before the Tribunal. While I accept the applicant’s explanation as to his inability to attend the planning meeting on 15 February 2007, there is no material before me on which to make a finding that the respondent was aware of the applicant’s detention at that time. Indeed I recollect Ms Johnson expressing surprise that the applicant was not in attendance as she expected him to be there.

19 On the other hand, the submissions made by Ms Johnson, on behalf of the applicant were appropriately made. In this regard I note that s.73(5)(a) of the ADT Act requires the Tribunal ‘is to act as quickly as is practicable.’ In this case it was not the fact of the applicant’s failure to appear on 15 February 2007, which gave rise to the orders that were made on this day. It was the fact that the applicant had failed to comply with the orders that had been made on 16 February 2006 and the fact that the five documents for which privilege had been claimed had been the subject of an earlier determination of the Tribunal, which gave rise to the show cause hearing.

20 In respect to the applicant’s assertion that he was not well prepared for the hearing on 12 April 2007. I accept that he has numerous proceedings before the Tribunal and other courts. However, it is for him to manage these and not the Tribunal. The orders that were made on 16 November 2006 were made with the agreement of the applicant having regard to his commitments and other needs.

21 In my opinion from the material before the Tribunal the applicant was fully appraised about the issues relevant to the show cause hearing and he was given every opportunity to respond to them and that he in fact did so. In light of this finding, in my opinion it is appropriate that the Tribunal determine his application for the orders sought in his Notice of Motion and those sought by the respondent.

22 I also note that the applicant participated fully in the show cause hearing and for the purpose of that hearing submitted the CD, which he asserted established that there had been inadequate search for the relevant correspondence he had requested between the Crown Solicitor’s Office and the Ombudsman. While this CD was not played during the hearing, the applicant did follow it up with the Registrar as explained above. A copy of this CD I note, was also sent to Mr McDonnell. I have listened to that CD and in my opinion for the reasons set out below, this fails to establish the threshold test which the applicant is required to meet in order to raise an issue of adequacy of search.

23 In regard to the orders sought by the applicant I find that the applicant has failed to establish an abuse of process by the respondent and dismiss his application for the order set out in paragraph 1 of his Notice of Motion. In light of my findings that the applicant’s application should be dismissed (see below) and my findings in respect to costs (see below) I refuse to make the orders sought in paragraph 2. and 3. of the applicant’s Notice of Motion. In regard to the remaining matters, these in my opinion are misconceived and should also be dismissed.

24 This leaves the respondent’s application for orders that the applicant’s substantive application be dismissed under s.73(5)(h) of the FOI Act. In my opinion there are primarily two issues to be determined and these are:

a) have the five documents the subject of this application and for which access has been refused already been the subject of an application for external review by the Tribunal (‘ the legal professional privilege issue ’); and

b) has the applicant provided sufficient material to raise an adequacy of search issue in respect to the correspondence between the Crown Solicitor’s Office and the Ombudsman for which the applicant sought access (‘the sufficiency of search issue’).

25 Each issue is relevant to the question as to whether this application is frivolous, vexatious or lacking in substance.

The legal professional privilege issue

26 In the original decision and the internal review determination, the respondent expressly cross referenced each of the five documents that had been identified as coming within the terms of the applicant’s FOI request the subject of this application against those that had been identified as coming within his earlier FOI request and which was the subject of the earlier application/file no 053361. The applicant has at no time disputed the correctness of the cross references. That is, he appears to have at all times been agreement that the documents for which he now seeks access are the same documents for which he had sought access previously and which are the subject of the earlier application/file no 053361. The applicant also appears to accept that the documents in question are privileged. His only area of dispute is the respondent’s failure to exercise its discretion under s.25(1) of the FOI Act. That discretion he submits should be exercised so as to grant him access to the documents notwithstanding that they are privileged.

27 It is not for the Tribunal to determine that issue for the purposes of this preliminary determination. What is in issue is whether the applicant should be entitled to seek review of a decision in respect to documents which have already been the subject of review before the Tribunal in an earlier determination and from which the applicant has lodged an appeal. As mentioned above, it is the applicant’s contention that he will be denied the opportunity to argue his contentions if the Appeal Panel does not extend his appeal to the merits.

28 The Registry has advised that the applicant’s appeal from the in that earlier decision/file no 053361of Montgomery JM was heard on 15 May 2007 and that the Appeal Panel reserved its decision. I only mention this by way of background as in my opinion, having regard to the reasons for decision of Montgomery JM, in that earlier decision/file no 053361, it is unnecessary to await the findings of the Appeal Panel in order to determine whether this application should be dismissed or not.

29 In the earlier decision/file no 053361, at [53] and [54], Montgomery JM, after finding that the documents in issue, including the five documents the subject of this application, were exempt under cl.10 of Schedule 1 of the FOI Act, went on to consider the discretion as set out in s.25(1)(a) of the FOI Act. Although Montgomery JM followed the decision of the President in Neary (supra), he went on to state at [54] that ‘…[if] such a discretion may be said to exist, I consider that it is not appropriate in the circumstances of this case to release the disputed documents in any event.’

30 On this basis I am satisfied that the very issue the applicant seeks to raise in this application in regard to the five documents for which the exemption of legal professional privilege has been claimed have been fully argued in the earlier decision/file no. 053361. Having appealed that decision the applicant was at liberty to argue the same issues again before the Appeal Panel and he should not be allowed to raise the same issues in respect to the same documents that are the subject of this application. To do so would in my opinion be an abuse of process. Alternatively, I find that the applicant’s application in so far as it relates to the 5 documents in issue lacks any substance.

31 For the reasons stated above, in my opinion it is appropriate that the applicant’s application in so far as it relates to the five documents for which legal professional privilege has been claimed be dismissed under s73(5)(h) of the ADT Act.

The sufficiency of search issue

32 Where an agency has failed to locate a document for which the FOI applicant has sought access and which that applicant asserts is held by the agency and the agency determines that it does not hold such a document, , it has been argued that this may constitute a failure to determine the applicant’s FOI request pursuant to s.24(2) of the FOI Act: see Cianfrano v Director General, Department of Commerce and Anor (No 2) [2006] NSWADT 195. In that decision, at [65], the President concluded as follows:

“In my view if an applicant contends that there has been a failure to locate relevant documents the Tribunal must decide whether the applicant is raising a s.24(2) question. The situation that arose in Burton [ Burton and Victoria Police, unreported, Administrative Appeals Tribunal of Victoria, No 1996/26906 (5 November 1998)] underlines the need for the Tribunal to satisfy itself always that the determination before it is a fully responsive determination. The Tribunal may have to ascertain whether there has been a possible failure by the agency to address all documents in its possession. Such a failure can be properly be characterised as a refusal of the kind referred to in s.24(2); and is reviewable.”
33 The President went on to say the following at [68] and [69]:
“68 I think it [is] clear that the function of s.24(2) in the scheme of the Act is to ensure that an agency fully determines an application, and for such a refusal to be subject to the scrutiny of both internal and external review.

69 An applicant, it seems to me, must put some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of that kind exists. It cannot be enough that the applicant merely asserts a non-compliance of the kind to which s.24(2) is addressed. It is not enough for an applicant simply to base the assertion on a deep-seated distrust of the agency. Care must be exercised in putting the agency to the cost and effort of making further searches or putting on affidavit evidence.”

34 In this application the sufficiency of search issue arises from the following paragraph of the applicant’s FOI request:
‘Copies of all correspondence between the Crown Solicitor and the NSW Ombudsman, material provided by the NSW Ombudsman, file notes and other related material in respect of the criminal actions initiated under the Protected Disclosures Act 1994 in November 2003 by Mr Michael McGuirk against Niland et al referred to above.’
35 This aspect of the applicant’s FOI request must be viewed in the context of the first category of document he sought access to. This category was amended following consultation with the respondent to include documents relating to the “… respondent’s decision not to pursue a ‘ Grant of Crown Representation ’ in respect to the McGuirk v Niland & Ors ” prosecution even though “… some or all of the defendants originally believed they were entitled to such representation under the ‘ Guidelines Forum’ for the Provision of Ex Gratia Assistance for Legal Representation for Ministers of the Crown, Public Officials and Crown Employees’ , issued by the NSW Premier’s Department as an attachment to Premier’s Memorandum 99/11.

36 On 19 April 2006, the respondent made its determination under s.28 of the FOI Act in regard to the applicant’s FOI request. The determining officer was Mr Feneley and in his reasons for determination, he stated that in regard to the abovementioned category of documents requested, the respondent did not hold any documents. In his reasons for decision he went on to say ‘… [a] search was made for records held by this Agency under the computerised Recfind system. No other documents were found falling within the ambit of your amended application.’

37 On 14 May 2006, the applicant made an internal review request pursuant to s.34 of the FOI Act. The applicant’s request for internal review was a 4 page letter and in respect to his request for documents of communications between the respondent and the Ombudsman he said the following:

‘I note that Mr Feneley was not present for the cross examination under oath of the Assistant Crown Solicitor responsible for criminal matters, Mr Ian Linwood, at the Administrative Decisions Tribunal on Thursday, 2 March 2006. I would direct Mr Feneley to the transcript of that cross examination. If he does that, I am sure that he will come to a different conclusion. I will put this transcript into evidence before the Tribunal if and when this matter becomes subject to external review.’
38 On 30 May 2006, the Director General of the respondent agency made his internal review determination. He affirmed the decision of Mr Feneley and said that in respect to the communications between the respondent and the Ombudsman that the Crown Solicitor’s Office had conducted a fresh search for documents that may fall within the scope of the applicant’s request by using the TRIM database system and that this search found the ‘the Crown Solicitor’s Office holds no documents’ that came within the terms of his requests.

39 I have listened to the CD filed by the applicant and his transcription of what was said is correct. However, when the comment of Mr Linwood, which is relied on by the applicant, is examined in its proper context it fails to support the contentions made by the applicant in this application. On 10 March 2006, Mr Linwood was extensively cross examined by the applicant over some considerable time in regard to the relationship between the Office of the Crown Solicitor, the University of NSW and the defendants in the abovementioned private prosecution by the applicant. In regard to the particular comment by Mr Linwood, relied on by the applicant as set out in his email, this was very brief comment and was made in the context of a question as to whether Mr Linwood had tested whether the alleged acts of the defendants, as charged by the applicant in his private prosecution, were acts done in the course of their respective employment. In response to this, Mr Linwood said the evidence was clear. He also made reference to reading ‘material’ – that he had a wealth of material including information from the Ombudsman. It is the latter remark which is relied on by the applicant. However, no further questions were asked by the applicant as to the nature of this information. The reason for this was undoubtedly the fact that the nature of this information was not a matter of relevance to the application that was before Montgomery JM in the earlier decision/file no. 053361.

40 Having regard to the whole of the oral evidence of Mr Linwood, I find that the brief comment made by Mr Linwood in regard to the material he had from the Ombudsman does not support the contentions of the applicant that Mr Linwood gave evidence that he had a wealth of correspondence from the Ombudsman in relation to the applicant’s private prosecution.

41 On the basis of this finding, the applicant has failed to satisfy the threshold he is required to meet in establishing that there has been a failure by the respondent to adequately search for the correspondence requested. Accordingly, this aspect of the applicant’s application also lacks substance and it is therefore appropriate for the Tribunal to make an order that his application be dismissed pursuant to s.73(5)(h) of the ADT Act.

Costs

42 At the conclusion of the hearing, Mr McDonnell made an application, on behalf of the respondent, that the applicant pay the respondent’s costs of the hearing. Mr McGuirk opposed that application and also sought an order that the respondent pay his cost. For the reasons set out below, in my opinion, there are no special circumstances that warrant an order for costs in this application.

43 The Tribunal’s power to award costs is set out in s.88 of the ADT Act. It is a discretionary power that can only be exercised where the Tribunal is satisfied that there are ‘special circumstances’ warranting an award of costs: see Gizah Pty Ltd v AXA Trustees Limited (No. 2) [2001] NSWADT 164 at [29].

44 ‘Special circumstances’ have been defined as ‘circumstances that are out of the ordinary, but without having to be extraordinary or exceptional’. It is well established that mere success in a review application does not constitute special circumstances: see Brooks Maher v Cheung [2001] NSWADT 18 at [11] and Hutchings Electrical v Director General, Department of Fair Trading (No. 2) [2002] NSWADT 255 at [18]. It has been held that where one party causes another party to incur costs because of unreasonable delays, or by making misconceived, frivolous, vexatious or insubstantial procedural or substantive applications this may constitute special circumstances warranting an order for cost: see Brooks (supra) and Practice Note 12 (reissued on 11 May 2005).

45 It is also well established that the power to order costs should not be used as ‘some kind of sanction to punish agencies for poor administration’, and the Tribunal should not embark on ‘a general enquiry into the way in which the agency dealt with the Applicant’: Raethel v Director-General, Department of Education & Training [2000] NSWADT 56 at [56] – [58].

46 The respondent contends that the conduct of the applicant in this application does give rise to special circumstances warranting an order for costs. In this regard the respondent asserts that at all times the applicant’s application was an abuse of process or lacked substance and the applicant had further unnecessarily delayed the proceedings by failing to comply with orders of the Tribunal. This it asserts has caused it to incur unnecessary costs.

47 The applicant on the other hand contended that the conduct of the respondent, which he asserted was deliberately misleading, was sufficient to constitute special circumstances warranting an order for costs. As to his costs the applicant stated that he had incurred costs in that he was required to purchase the tapes of the hearing before Montgomery JM in the earlier application/file no 053361.

48 In my opinion, as mentioned above, there is no material before the Tribunal to find that the respondent misled the Tribunal on 15 February 2007 when the matter was before it, or that its conduct was an abuse of process. Nor can it be said that the applicant has unreasonably delayed these proceedings. As I indicated above, I accept the applicant’s reasons for his inability to attend the planning meeting on 15 February 2007. I also accept that it took him some time to obtain the tapes of the hearing before Montgomery JM and to convert these into disc form. The fact that this material did not ultimately support his contentions does not of itself constitute special circumstances. I assume that when the applicant made his internal review request he did not in fact have the relevant material, he was going on what he understood to have been the evidence. This does of course not excuse the unnecessary threatening tone of his internal review request.

Orders

49 The Tribunal orders:

1. The applicant’s application is dismissed pursuant to s.73(5)(h) of the Administrative Decisions Tribunal Act 1997.
2. There are no orders as to costs.