McGuirk v University of New South Wales
[2005] NSWADT 286
•06/12/2005
Set aside by Appeal:
CITATION: McGuirk v University of New South Wales [2005] NSWADT 286 DIVISION: General Division PARTIES: APPLICANT
Gerard Michael McGuirk
RESPONDENT
University of New South WalesFILE NUMBER: 053169 HEARING DATES: On the papers SUBMISSIONS CLOSED: 22/08/2005 DATE OF DECISION:
06/12/2005BEFORE: Montgomery S - Judicial Member APPLICATION: access to documents - legal professional privilege - Costs MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989CASES CITED: Gizah Pty Limited v. AXA Trustees Limited (No. 2) [2001] NSWADT 164
Marrickville Commercial College Ltd v. Vocational Education and Training Accreditation Board [2001] NSWADT 134
Miriani v Commissioner for Fair Trading
Office of Fair Trading [2005] NSW ADT 99
Petria Pty Limited v. Makhoul [2005] NSWADTAP 12
Sotiropoulos v. Mattana Coiffure (No. 2) Pty Limited [2004] NSWADTAP 43
Thalassa Pty Limited v Hawkesbury River Marina Pty Limited [2005] NSWADTAP 48
Trust Company of Australia Ltd v Craig & Ors [2005] NSWADT 65
Wood & Anor v Bergman (No 2) [2003] NSWADT 175REPRESENTATION: APPLICANT
In person
RESPONDENT
P Singleton, BarristerORDERS: Mr McGuirk is to pay the lesser amount of $1000 or the whole of the University’s costs in relation to this matter. This amount is to be paid within 60 days from the date of this order
REASONS FOR DECISION
1 Mr McGuirk applied to the University of New South Wales for access to certain documents under the Freedom of Information Act 1989 (“the FOI Act”). The University’s Freedom of Information Officer, Ms Osborn, determined to release some documents, but to withhold others. The document that is the subject of this application is a report by the University’s solicitor (“the Kirby memorandum”).
2 Mr McGuirk wrote to the Principal Officer of the University, Professor Mark Wainwright raising a number of issues and included an application for internal review. The cheque he had enclosed with his application for internal review was unsigned. Ms Osborn requested that Mr McGuirk forward a signed cheque if he wished to proceed with his application for internal review. Though the time period for making an application for internal review had passed Ms Osborn indicated that she was willing to extend the period.
3 Mr McGuirk asserted that his oversight in failing to sign the cheque which accompanied his application for internal review in no way prevented the University from carrying out an internal review of his application.
4 Mr McGuirk commenced proceedings in the Tribunal in relation to the matter. Notwithstanding the application to the Tribunal, Mr McGuirk also lodged a new application to the University under the FOI Act in which he again sought access to the Kirby memorandum. That application was subsequently refused and resulted in a further application to the Tribunal.
5 On 3 June 2005, the University’s Assistant Solicitor, Mr Mullen, wrote to Mr McGuirk and invited him to discontinue the Application before the Tribunal. He also advised Mr McGuirk that he intended to rely on the letter in any costs application that the University made should the Tribunal hear and determine the jurisdictional point. He referred Mr McGuirk to the decision of O'Connor J in Miriani v Commissioner for Fair Trading, Office of Fair Trading [2005] NSW ADT 99.
6 On 22 June 2005, Mr Mullen again wrote to Mr McGuirk and invited him to discontinue the Application before the Tribunal.
7 The University raised as a preliminary issue for determination the question of whether the matter should be struck out on the basis that the Tribunal does not have jurisdiction to hear and determine it as no application has been made for an internal review determination.
8 Each of the parties made submissions on the issue. Mr McGuirk subsequently withdrew his application and the matter was never determined. The University immediately sought an order for costs in relation to the matter. The University's primary submissions were made orally ex tempore on 8 August 2005. Mr McGuirk was given time to file written submissions and the University time to respond.
9 Mr McGuirk also contends that a costs order against the University is warranted. He seeks an award of costs in the amount of $1 in order to compensate him for photocopying costs unnecessarily incurred.
The Respondent’s Submissions as to Costs
10 The basis of the University's contention that costs should be awarded is Mr McGuirk's failure to abandon his case after he was notified that the Tribunal lacked jurisdiction. The University contends that the reason it lacked jurisdiction is immaterial. The appropriateness of a costs order is based on Mr McGuirk's conduct in persisting with an application that he had been advised was incompetent.
11 On 3 June 2005 and 22 June 2005 the University warned Mr McGuirk that it considered that his application for review by the Tribunal was incompetent because, absent a valid application for internal review, the Tribunal had no jurisdiction, and that costs would be sought if he did not discontinue the proceedings. Mr McGuirk was invited to submit a late application for internal review and was advised that, if he did so, time to do so would be extended. Mr McGuirk did not accept the invitation to submit a late application for an internal review, but he promptly lodged a second original application for access to the Kirby memorandum.
12 The University contends that by pursuing the second application Mr McGuirk acknowledged the difficulties he faced in the Tribunal in the present case and he demonstrated that he no longer needed to press the proceedings in the Tribunal. However, he did press the proceedings until well after the hearing on the question of whether or not the Tribunal had jurisdiction. The University applied for costs from the time of its first warning to Mr McGuirk that the Tribunal did not have jurisdiction to hear his case.
13 The University relies on Miriani v. Commissioner for Fair Trading [2005] NSWADT 99 and Marrickville Commercial College Ltd v. Vocational Education and Training Accreditation Board [2001] NSWADT 134 as authorities relevant to the making of costs orders in matters under the FOI Act. It contends that the present case is one in which there was no decision which the Tribunal could review, in which there was a clear warning to that effect, and yet in which Mr McGuirk persisted with his application. Not only did Mr McGuirk persist after a warning, he persisted after he apparently accepted that the warning had substance and in circumstances in which he had no proper interest to pursue and even though he realised that there were costs being wasted.
Mr McGuirk's Submissions as to Costs
14 Mr McGuirk made written submissions in response to the argument presented on behalf of the University. Mr McGuirk contends that on 7 June 2005 he advised Mr Mullen that he had submitted a fresh FOI application for the Kirby memorandum just in case there were any technical issues with his internal review application.
15 Mr McGuirk contends that the circumstances in this matter are in direct contrast to those in Marrickville because in this case it is the University that has pressed ahead with its application for the Tribunal to hear and determine the jurisdictional point. He submitted that the strike out motion should never have been made, as there is no significant point of law involved. He asserted that the proceedings were not only frivolous, vexatious, misconceived and lacking in substance, but that they were also a significant waste of public money and of his personal time. He contends that they were brought for an improper purpose and an attempt to frustrate the objects of the FOI Act.
16 Mr McGuirk submits that the Tribunal is not bound to follow the rule that 'costs follow orders'. The Tribunal is free to determine costs in this matter consistent with the promotion of the objects of the Tribunal.
Findings
17 The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”) in respect of proceedings commenced by an application under the FOI Act. Section 88 (1) of the ADT Act provides that the Tribunal may award costs only if it is satisfied that there are special circumstances warranting an award of costs.
18 It is rare for the Tribunal to make costs orders in General Division matters. Mr Singleton has referred to two matters in which this has been done: Miriani v. Commissioner for Fair Trading [2005] NSWADT 99 and Marrickville Commercial College Ltd v. Vocational Education and Training Accreditation Board [2001] NSWADT 134. I note that the decision in Miriani was set aside on appeal.
19 There have been a number of decisions in the Retail Leases Division of the Tribunal in relation to costs awarded by the Tribunal. These decisions give guidance on the interpretation and application of section 88 of the ADT Act. The Appeal Panel has recently considered the issue in Sotiropoulos v. Mattana Coiffure (No. 2) Pty Limited [2004] NSWADTAP 43 and Petria Pty Limited v. Makhoul [2005] NSWADTAP 12 and Thalassa Pty Limited v Hawkesbury River Marina Pty Limited [2005] NSWADTAP 48.
20 In obtaining an order for costs there are two hurdles to overcome. It is firstly necessary to identify “special circumstances”. It is then necessary to determine whether they “warrant an award of costs”: Gizah Pty Limited v. AXA Trustees Limited (No. 2) [2001] NSWADT 164 at [29]. Provided that “special circumstances” are found that would warrant the making of a costs order and there are no other disentitling factors, an order must be made: Gizah at [33] and [34].
21 It is plain that “special circumstances” are “circumstances that are out of the ordinary, but without having to be extraordinary or exceptional” and one needs to look for those circumstances that are “out of the ordinary” and then see whether they warrant an award of costs, whether in relation to the whole of the proceedings, part thereof or a proportion thereof.
22 In Marrickville the respondent had warned at a directions hearing on 11 January 2001 that the proceedings were incompetent for want of jurisdiction and applied for dismissal of the proceedings. The Tribunal also expressed its reservations on jurisdiction, both at the directions hearing on 11 January and at a further directions hearing on 5 February 2001. The applicant persisted with the application until 9 February 2001. The Tribunal ordered the applicant to pay the respondent’s costs from 12 January 2001. The Tribunal said:
23 In my view, the circumstances of this matter are similar to those in Marrickville. The obvious difference in this matter is that Mr McGuirk ultimately had two matters before the Tribunal that both dealt with the Kirby memorandum. He did not withdraw the current application until well after he was put on notice of the jurisdictional point and until well after the hearing of the issue.
“40 I may award costs in relation to these proceedings only if I am “satisfied that there are special circumstances warranting an award of costs” (s88(1) ADT Act). I respectfully agree with the Tribunal’s analysis in Brooks Maher v Chung [2001] NSWADT 18 to the effect that this is a two stage test: are there special circumstances, and do those special circumstances warrant an award of costs. I note I was referred in argument to two other cases regarding costs in the General Division of this Tribunal: Christianos v Commissioner of Police [1999] NSWADT 66 in which special circumstances did warrant a costs order, and Townsend v Chief Executive, State Rail Authority [1999] NSWADT 104 66 in which special circumstances did not warrant a costs order. In Townsend the President commented on the need to keep in mind the access objectives which the Tribunal is intended to serve.
41 It is “out of the ordinary” (Brooks Maher v Chung at para 140), and therefore a special circumstance that a party will approach the Tribunal to review a decision which is not clearly a reviewable decision. While a special circumstance, it is not, however, extraordinary or exceptional (see eg the facts of Minister for Disability Services -v- People with Disabilities (NSW) Inc [2001] NSWADTAP 7 at paras 19, 20) so would not, alone, warrant the making of an order for costs.
42 It became extraordinary or exceptional in this case when Marrickville College continued to ask the Tribunal to review a decision. Marrickville College did so in the face of the unambiguous words of the relevant Act, which described a necessary decision making process that its own evidence indicated had not happened. After the directions hearing on 11 January 2001 there was a clear basis for Marrickville College to consider withdrawing its application. Despite being given good cause to realise that its application for merits review was misconceived, it maintained the application at a further directions hearing, at which VETAB pressed its application for dismissal and I made my reservations quite clear. It maintained its application for a further period until 5 clear days before the hearing. To have done so is in my view a special circumstance which warrants the making of a costs order.”
24 In Sotiropoulos the Appeal Panel, quoting from Wood & Anor v Bergman (No 2) [2003] NSWADT 175 at [13], held that ‘where an application to the Tribunal lacked any conceivable merit in fact or law, this could constitute “special circumstances” justifying a costs order under s 88 [of the ADT Act] in favour of the successful respondent’.
Molloy JM in Trust Company of Australia Ltd v Craig & Ors [2005] NSWADT 65 stated at 44:
“44 The applicant withdrew these proceedings and the proceedings have been dismissed. In those circumstances the common law makes it plain that a Respondent is entitled, absent disentitling factors, to a costs order. In my opinion, the withdrawal of proceedings is a circumstance out of the ordinary within the meaning that I gave to it in Gizah v AXA and within the meaning of subsequent decisions of this Tribunal. The commencement of proceedings against a party should only be carried out after the greatest of consideration to ensure that proceedings are not commenced in circumstances where they should not have been commenced.”
25 The Appeal Panel views from Sotiropoulos are applicable in this case. Here it is also apparent that the University had made an offer to Mr McGuirk in which he was invited to withdraw his application to the Tribunal and to pursue an internal review application. In effect Mr McGuirk rejected that offer. In my view, the approach that Mr McGuirk adopted amounts to “special circumstances” for the purposes of section 88 of the ADT Act. In the circumstances I am also of the view that the special circumstances warrant an award of costs.
26 In my view, Mr McGuirk has behaved in a way that warrants a sanction. The appropriate order is one that will serve as a deterrent to future similar conduct. In the circumstances, an order that Mr McGuirk is to pay $1000 towards the University’s costs is sufficient. If the University’s costs are less than $1000 than the lesser amount should apply. This amount is to be paid within 60 days from the date of this order.
Orders:
Mr McGuirk is to pay the lesser amount of $1000 or the whole of the University’s costs in relation to this matter. This amount is to be paid within 60 days from the date of this order.
12
2