McGuirk v University of New South Wales (GD)

[2006] NSWADTAP 39

Appeal Panel - Internal

CITATION:	McGuirk v University of New South Wales (GD) [2006] NSWADTAP 39
PARTIES:	APPELLANT Gerard McGuirk RESPONDENT University of New South Wales
FILE NUMBER:	059085
HEARING DATES:	31/03/2006
SUBMISSIONS CLOSED:	03/31/2006
DATE OF DECISION:	08/22/2006
BEFORE:	Hennessy N - Magistrate (Deputy President); Wilson R - Judicial Member; Blake C - Non Judicial Member
CATCHWORDS:	costs - relevant considerations - leave to extend to the merits
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	053169
DATE OF DECISION UNDER APPEAL:	12/06/2005
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Darcey v Pre-Term Foundation Clinic and Anor [1983] 2 NSWLR 497 Hills v Raunio [2004] ACTSC 98 Latoudis v Casey (1990) 170 CLR 534 Marrickville Commercial College Ltd v Vocational Education and Training Accreditation Board [2001] NSWADT 134; Myers v Elman [1940] AC 282
REPRESENTATION:	APPLICANT In person RESPONDENT P Singleton, counsel
ORDERS:	1. Appeal upheld; 2. The Tribunal’s decision that Mr McGuirk is to pay the lesser amount of $1000 or the whole of the University’s costs in relation to this matter is set aside; 3. Leave given to extend the appeal to the merits of the Tribunal’s decision, but only for the purpose of Mr McGuirk pursuing his application for costs against the University in relation to the proceedings before the Tribunal; Note: If Mr McGuirk wishes to pursue his application for costs against the University in the proceedings before the Tribunal, he is directed to notify the Registry and the University of that intention within 14 days of the date of this decision; 4. Application for costs against the University in these proceedings declined

Introduction

1 Mr McGuirk has appealed against a costs order made by the Tribunal in relation to proceedings concerning an application he made to the University of New South Wales (the University) under the Freedom of Information Act 1989 (FOI Act). At the hearing before the Tribunal, Mr McGuirk withdrew his application and the Tribunal dismissed it. The University then applied for costs. The Tribunal made the following order:

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.

2 Mr McGuirk has identified several grounds of appeal on legal questions and has also applied for leave for the appeal to be extended to the merits of the Tribunal’s decision: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113(2).

Background to the costs order

3 Mr McGuirk applied to the University under the FOI Act for certain documents. On 17 March 2005, the University made a determination releasing some of the documents but refusing access to others including a memorandum by the University’s solicitor, Ms Carol Kirby to the then Vice Chancellor, Wyatt Hume, dated 8 December 2003 (the Kirby memorandum). By letter dated 19 April 2005, Mr McGuirk applied to the Vice-Chancellor, Professor Mark Wainwright for an internal review of the University’s determination. The cheque which Mr McGuirk attached to his application was not signed, but the University did not alert Mr McGuirk to that fact until the statutory 14 day period for responding to the internal review application had expired. Once that period had expired, the University was deemed to have refused access to the documents to which the application relates: FOI Act, s 34(6). Six days after the 14 day period had expired, Mr McGuirk applied to the Tribunal for an external review of the University’s deemed refusal of his application.

4 After Mr McGuirk had lodged his application with the Tribunal, the University’s freedom of information officer, Ms Osborn, wrote asking him to forward a signed cheque if he wished to proceed with his application for internal review. Mr McGuirk did so promptly. On 3 June 2005, Mr Mullen, the University’s assistant solicitor, wrote to Mr McGuirk inviting him to discontinue the application before the Tribunal and telling him that if he did not do so, he intended to rely on the letter in support of an application for costs against him. On 22 June 2005, the University wrote to Mr McGuirk again requesting that he discontinue his application to the Tribunal. The reason the University asked Mr McGuirk to withdraw his application was that, in their view, the Tribunal had no jurisdiction to hear it because he had not made a valid application for internal review.

5 Mr McGuirk did not withdraw his application and the matter was set down for hearing on 8 August 2005. Meanwhile, Mr McGuirk had applied to the University again, under the FOI Act, for the Kirby memorandum. On the morning of 8 August 2005, he lodged a second application for external review of the University’s refusal to give him access to that document. At the hearing in relation to the first application, the Tribunal indicated that its view was that the Tribunal did not have jurisdiction to entertain that application. Mr McGuirk withdrew the application and the Tribunal dismissed it without making any finding about jurisdiction. The University then applied for costs. Mr McGuirk, also applied for costs against the University. As he was not legally represented, he sought an award of costs in the amount of $1.00 in order to compensate him for photocopying costs. Each party made oral submissions in relation to the costs applications. The Tribunal also gave Mr McGuirk further time to file and serve written submissions in response to the University’s application. After receiving Mr McGuirk’s written submissions the Tribunal decided “on the papers” pursuant to s 76 of the ADT Act to order Mr McGuirk to pay the University’s costs, not exceeding $1,000.00.

Grounds of Appeal

6 On the basis of Mr McGuirk’s Notice of Appeal and his written submissions, we have interpreted his grounds of appeal on questions of law to be as follows:

1. The Tribunal made an error of law by awarding costs as a sanction or punishment.

2. The Tribunal made an error of law by making findings of fact for which there was no evidence, or alternatively which were in conflict with the facts.

3. The Tribunal made an error of law by failing to consider the whole of the evidence before it in respect of the actions of the parties.

4. The Tribunal made an error of law by denying Mr McGuirk procedural fairness.

5. The Tribunal made an error of law when it concluded that the facts in Marrickville Commercial College Ltd v Vocational Education and Training Accreditation Board [2001] NSWADT 134 were similar to those in this case.

7 Costs rule. Mr McGuirk’s primary ground of appeal is that the Tribunal erred by imposing a costs order as a sanction against him and as a deterrent to others. Under s 88(1) of the ADT Act “special circumstances” are required before the Tribunal may award costs. That provision says that:

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 there are special circumstances warranting an award of costs

8 Tribunal’s decision. The “special circumstances” which persuaded the Tribunal to order Mr McGuirk to pay the University’s costs were that he refused to withdraw his application even though the University wrote to him twice pointing out to him that the Tribunal did not have jurisdiction to review its decision. The Tribunal accepted that Mr McGuirk’s application lacked any conceivable merit and that he nevertheless refused to withdraw it until the hearing date. The Tribunal went at [26] to say that:

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.

9 Meaning of the Tribunal’s decision. The University made two submissions challenging Mr McGuirk’s assertion that the Tribunal had awarded costs against him as a punishment. Firstly, the University said that the fact that costs were capped at $1,000.00 suggests that the order was not intended as a punishment, but as a partial compensation for the University’s expenses. We do not agree with that proposition. The Tribunal used the words “sanction” and “deterrent”. It is clear from the passage quoted above that at least one of the reasons the Tribunal awarded costs against Mr McGuirk was to deter him from engaging in similar conduct in the future. The University’s second submission was that the Tribunal ordered Mr McGuirk to pay costs in order to protect itself from an abuse of its process, rather than to punish Mr McGuirk. (See Darcey v Pre-Term Foundation Clinic and Anor [1983] 2 NSWLR 497 at 503-504 per Hunt J.) Even if one of the reasons the Tribunal ordered costs was to control a perceived abuse of its process, the Tribunal added the comment that Mr McGuirk’s behaviour warranted a sanction against him.

10 Can costs orders be made to punish or deter? The courts generally have discretion to order costs, but normally the proper exercise of that discretion will require that an unsuccessful party be ordered to pay the successful party’s costs. That is not the case in the Tribunal, where costs may only be awarded if there are “special circumstances” warranting such an order. Where the “normal” costs rule applies, costs are not to be awarded by way of punishment of the unsuccessful party. In Latoudis v Casey (1990) 170 CLR 534 Mason CJ said at 543 that:

If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings. . .

11 The University submitted that s 88 of the ADT Act does not include the common law principle that costs should not be awarded as a sanction or a deterrent. That proposition is not persuasive because even where courts require special circumstances, for example when ordering costs on an indemnity basis or against a solicitor personally, the principle that costs are not to be used as a punishment applies. That point was made by the House of Lords in Myers v Elman [1940] AC 282 at 289 where Viscount Maugham set out the circumstances where costs could be awarded against a solicitor:

Misconduct or default or negligence in the course of the proceedings is in some cases sufficient to justify an order. The primary object of the Court is not to punish the solicitor, but to protect the client who has suffered and to indemnify the party who has been injured … It is not limited to misconduct or default, but expressly extends to costs incurred improperly or without reasonable cause, or which have proved fruitless by reason of undue delay in proceeding under a judgment or order. (Emphasis added.)

12 This principle was applied by the Supreme Court of the ACT in Hills v Raunio [2004] ACTSC 98 where Connolly J said at [11], that:

It is clearly the law that the costs sanction is “not to punish the solicitor, but to protect the client who has suffered and to indemnify the party who has been injured” (per Viscount Maugham in Myers v Elman at 289). The costs order should therefore be limited to the extent that the improper conduct has put the defendants to unreasonable costs.

13 The Tribunal’s discretion in relation to costs under s 88(1) of the ADT Act is analogous to that of the courts when deciding whether to award costs against a solicitor. It follows that even where “special circumstances” are required, the costs power should not be used as a penalty or deterrent. The Tribunal has previously acknowledged that the costs power should not be used as a “sanction to punish agencies for poor administration”: Raethel -v- Director-General, Department of Education and Training [2000] NSWADT 56 at [57]. Similarly, it should not be used as a sanction to punish applicants for improper conduct. By doing so, the Tribunal made an error of law. Having come to this conclusion it is not strictly necessary to deal with Mr McGuirk’s other grounds of appeal. Nevertheless, we do so briefly below.

Second ground -Failing to consider the whole of the evidence

14 By “the whole of the evidence” Mr McGuirk was referring to evidence in other Tribunal proceedings between him and the University. He says that the Tribunal failed to take into account the conduct of the University in those proceedings. In particular, Mr McGuirk says that the Tribunal was “aware of actions of the University over a long period of time – a sustained attempt by the University and its officers to avoid their obligations under the FOI Act, and to oppress me as an applicant through ‘advance deposit’ requests and orders for costs.” Mr McGuirk added that:

Rather than using whatever powers the Tribunal had to encourage the University to comply with its obligations under the FOI Act , Montgomery JM appears to have chosen to ‘turn a blind eye’ to the actions of the University. This is a clear failure by him to comply with the obligations as a Judicial Member of the Tribunal, and clear evidence of apprehended bias on his part.

15 We deal with the allegation of apprehended bias below at [26]. Leaving that issue to one side, this ground of appeal is misconceived. Because Mr McGuirk withdrew his application, the Tribunal’s only function in these proceedings was to determine whether to make a costs order. Under s 88, the Tribunal “may award costs in relation to proceedings before it”. The University’s conduct in other proceedings may be relevant to any costs application Mr McGuirk may now wish to pursue against the University (see [22] below) but it is not relevant to the Tribunal’s decision to award costs against Mr McGuirk in relation to his conduct.

Third ground - findings on no evidence or findings in conflict with the facts

16 Mr McGuirk submitted that the Tribunal misrepresented the evidence. He relied on the following passage from [1] to [4] of the Tribunal’s 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.

17 Mr McGuirk says that the clear impression from these passages is that not long after Ms Osborne received his application for internal review she requested that he forward a signed cheque if he wished to proceed with his application. He says that the passages also suggest that he declined to do so and commenced proceedings for an external review in the Tribunal. Finally, Mr McGuirk said that the passage suggests that he submitted a further application to the University for the same document but insisted that his application before the Tribunal remain on foot. According to Mr McGuirk, this is a gross misrepresentation of the facts which were that he applied to the Tribunal for an external review six days after the expiry of the 14 day statutory time period for the University to deal with his application. The day after he applied to the Tribunal he received a letter from Ms Osborn, dated 6 May 2005, telling him that the cheque had not been signed. On the same day that he received that letter he forwarded a cheque for $40.00 to the University by express post. His subsequent application to the University for the same document was made after the University raised the jurisdictional issue of the cheque not having been signed.

18 Mr McGuirk submitted that by grossly misrepresenting the facts, the Tribunal made an error of law. While we do not agree that the Tribunal “grossly misrepresented” the facts, we do agree that the Tribunal’s account of the facts lacked the detail necessary to give an accurate impression of the order in which critical events took place. Mr McGuirk did not say how that amounts to an error of law, as distinct from an error in the fact-finding process. Accordingly, we will return to this ground when considering whether to extend the appeal to the merits of the Tribunal’s decision.

Fourth ground - procedural fairness

19 Mr McGuirk submitted that the Tribunal did not allow him to address the ‘special circumstances’ which might provide a basis for making a costs order, nor did the Tribunal identify the factors which might warrant an order for costs against him. According to Mr McGuirk, “... in accordance with the decision of the High Court in Latoudis, there could be no basis for awarding costs against me, when those costs arose as a result of the vexatious and oppressive conduct of the University.”

20 Mr McGuirk has not identified any breach of procedural fairness. The University applied for an order for costs against him after warning him in writing twice that it would do so. Mr McGuirk had the opportunity to make oral and written submissions in response to that application. There has been no denial of procedural fairness.

Fifth ground – case Tribunal relied on is distinguishable

21 Mr McGuirk submitted that the Tribunal made an error of law when it concluded that the facts in Marrickville Commercial College Ltd v Vocational Education and Training Accreditation Board [2001] NSWADT 134 were similar to those in this case. A finding that the facts in another case are similar to the facts in the present case, is not an error of law. The Tribunal did not say that it was bound to apply a legal principle set out in Marrickville Commercial College Ltd because the facts were indistinguishable from the present case. All the Tribunal said was that the facts in that case were “similar”. The Tribunal went on to point out one “obvious difference” between the two cases. This analysis does not disclose an error of law.

Extension to the merits

22 Mr McGuirk sought the Appeal Panel’s leave to appeal against the merits of the Tribunal’s decision. Given our finding that the Tribunal erred by imposing costs as a sanction or punishment against Mr McGuirk and as a deterrent to future conduct, the appropriate order is to set aside the Tribunal’s decision. In those circumstances, there is no need to extend the appeal to the merits of the Tribunal’s decision unless Mr McGuirk wishes to pursue his application for costs against the University. The Tribunal did not consider that application because it decided that Mr McGuirk should pay the University’s costs. If Mr McGuirk wishes to pursue his application for costs against the University, then our view is that we should extend the appeal to the merits of the Tribunal’s decision, but only for that purpose. If Mr McGuirk wishes to pursue his application for costs, he should notify the Tribunal and the University of that intention within 14 days of the date of this decision. The Appeal Panel will then make further directions as to the conduct of that matter.

Other submissions

23 Mr McGuirk made two other submissions which were not grounds of appeal. They were as follows:

(a) “The Tribunal should make a report to the responsible Minister of the failures of certain officers of the University of New South Wales to exercise in good faith functions conferred or imposed on them by or under the Freedom of Information Act 1989.”

(b) “The Tribunal should make a finding that there is sufficient evidence of apprehended bias on the part of Judicial Member Montgomery to warrant his removal from all matters in which I am personally involved, including those for which hearings have been completed but decisions have not yet been delivered.”

24 Section 58 of the FOI Act allows the Tribunal to report to the responsible Minister “improper conduct” involving an officer of an agency. That section provides that:

If, as a result of a review application, the Tribunal is of the opinion that an officer of an agency has failed to exercise in good faith a function conferred or imposed on the officer by or under this Act, the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister for the agency.

25 Mr McGuirk submitted to the Appeal Panel that the Tribunal should have made such a report to the responsible Minister. We are not aware that Mr McGuirk made an application to the Tribunal in relation to these proceedings, to refer any particular matter to the responsible Minister. In the absence of any such application, supported by relevant evidence, we are not persuaded that the Tribunal has made an error of law in failing to exercise its discretion under this provision.

26 Finally, Mr McGuirk submitted that the Tribunal should make a finding that there is sufficient evidence of apprehended bias on the part of Judicial Member Montgomery to warrant his removal from all matters in which Mr McGuirk is personally involved, including those for which hearings have been completed but decisions have not yet been delivered. Mr McGuirk did not indicate that he had made an application to Mr Montgomery to disqualify himself in these proceedings. Had he made such an application, and had Mr Montgomery refused to disqualify himself, there may have been grounds for appeal. The Appeal Panel does not have jurisdiction to remove Mr Montgomery, or any other Judicial Member, from sitting on matters unless those matters are the subject of appeal proceedings before it.

Costs of this appeal

27 Mr McGuirk also sought the costs of this appeal. He said $1.00 was enough. Being successful on appeal does not entitle Mr McGuirk to an order for costs, even for $1. Under s 88 of the ADT Act, “special circumstances” are required. Mr McGuirk has not identified the special circumstances which would warrant an award of costs and we are not aware of any such circumstances.

Order

1. Appeal upheld.

2. The Tribunal’s decision that Mr McGuirk is to pay the lesser amount of $1000 or the whole of the University’s costs in relation to this matter is set aside.

3. Leave given to extend the appeal to the merits of the Tribunal’s decision, but only for the purpose of Mr McGuirk pursuing his application for costs against the University in relation to the proceedings before the Tribunal.

Note: If Mr McGuirk wishes to pursue his application for costs against the University in the proceedings before the Tribunal, he is directed to notify the Registry and the University of that intention within 14 days of the date of this decision.

4. Application for costs against the University in these proceedings declined.