McGuirk v University of New South Wales (No 2) (GD)
[2008] NSWADTAP 15
•1 April 2008
Appeal Panel - Internal
CITATION: McGuirk v University of New South Wales (No 2) (GD) [2008] NSWADTAP 15 PARTIES: APPELLANT
RESPONDENT
(Gerard) Michael McGuirk
University of New South WalesFILE NUMBER: 059085 HEARING DATES: 19 October 2007 SUBMISSIONS CLOSED: 10 December 2007
DATE OF DECISION:
1 April 2008BEFORE: Hennessy N - Magistrate (Deputy President); Wilson R - Judicial Member; Blake C - Non Judicial Member CATCHWORDS: leave to extend to the merits - costs MATTER FOR DECISION: Costs DECISION UNDER APPEAL: McGuirk v University of New South Wales [2005] NSWADT 286 FILE NUMBER UNDER APPEAL: 059085 DATE OF DECISION UNDER APPEAL: 12/06/2005 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989CASES CITED: Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81
Director-General, Dept of Education and Training v MT (No 2) [2006] NSWCA 320
McGuirk v University of New South Wales [2006] NSWADTAP 39
McGuirk v University of New South Wales [2007] NSWADTAP 31REPRESENTATION: APPELLANT
RESPONDENT
In person
P Singleton, barristerORDERS: The University’s application for costs in Tribunal proceedings 053169 is refused.
REASONS FOR DECISION
Introduction
1 This decision deals with an application for costs made by the University of New South Wales (the University) against Mr McGuirk in Tribunal proceedings 053169. The Tribunal made a costs order against Mr McGuirk in those proceedings, but Mr McGuirk successfully appealed against that decision and the order was set aside: McGuirk v University of New South Wales [2006] NSWADTAP 39. Subsequently, the Appeal Panel extended the appeal to a review of the merits of the Tribunal’s decision in relation to the University’s application for costs. Having done so, we have decided to determine the issue of costs ourselves rather than remit that issue to the Tribunal.
Background
2 The background to this application is that Mr McGuirk applied for a document under the Freedom of Information Act 1989 (FOI Act). The details of that application and the subsequent proceedings in the Tribunal were set out in McGuirk v University of New South Wales [2007] NSWADTAP 31 at [6] to [8]:
3 We set out below part of the transcript of what Judicial Member Montgomery said on 8 August 2005:
6 ... 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 immediately alert Mr McGuirk to that fact. Assuming that he had lodged a valid application for internal review and finding that the University had not responded to that application within the statutory 14 day period, Mr McGuirk applied to the Tribunal for an external review of the University’s "deemed refusal" of his application.
7 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 given that the cheque was unsigned, he had not made a valid application for internal review.
8 On 20 July 2005, the matter was listed to hear an application by the University that Mr McGuirk ’s application for review be struck out on the basis that the Tribunal did not have jurisdiction to hear it. The Tribunal heard that application on that day and reserved its decision. On the same day, Mr McGuirk lodged a second application for review of the University’s refusal to give him access to the Kirby memorandum. Both matters were listed again on 8 August 2005 for a directions hearing. Another unrelated matter was also listed for hearing on that day.
4 The Appeal Panel’s interpretation of the Tribunal’s views as expressed in the transcript are set out at [13] to [16] of the decision in McGuirk v University of New South Wales [2007] NSWADTAP 31:
MONTGOMERY: So we're here for a few different matters today between Mr McGuirk and the University. What I'd like to do before we get onto the matter that's in for substantive hearing is to deal with the two directions matters. These are the matters that were heard on the dismissal application - or one of them was a dismissal application, the Kirby memorandum. Mr Mullen told your representatives at the planning meeting when you weren't here that I'd decided that and I know neither of you have got the decision yet. I wanted to discuss it with you in terms of where we go with the two matters because we've got two applications in the Tribunal for the identical document and presumably they can't both proceed.
The decision that I have done in the matter that we've heard was that the University was correct in deciding that there was no internal review application and therefore there could be no deemed refusal of an internal review. What I had then decided that I would deal with it under the ADT Act and proceed to determine it anyway. So that's how the two end up overlapping.
On reflection, while I still think that was an appropriate way to go it's probably not without debate whether or not the Tribunal has got the power to deal with it under the ADT Act and this is your call, Mr McGuirk, that at the end of the day there could be an appeal on that point and since I'm aware no debate about the jurisdiction under the other one it may be a better way to proceed if that one, the first one, was withdrawn - but it's your call. But I've got two applications for the same document.
5 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 section 76 of the Administrative Decisions Tribunal Act 1997 ( ADT Act ) to order Mr McGuirk to pay the University’s costs, not exceeding $1,000.00.
13 The Tribunal formed the view, following the hearing on 20 July 2005, that despite the fact that there had been no valid application for an internal review (because the cheque had not been signed) the Tribunal nevertheless had jurisdiction to hear and determine the matter because of certain provisions in the ADT Act. We understand from the transcript of proceedings on that day that the Tribunal had drafted at least a preliminary decision to that effect in relation to jurisdiction. The transcript makes sense in that context because it talks of "the decision that I have done in the matter". However the Tribunal did not deliver a decision or give reasons, either orally or in writing, for that view.
14 … The purpose of the hearing on 8 August 2005 was to resolve how each of the applications in respect of the same matter should be dealt with.
15 The Tribunal indicated to Mr McGuirk that the view that the Tribunal did have jurisdiction to hear and determine the application was not without doubt and that, if a determination was made to that effect, it may be the subject of an appeal.
16 Mr McGuirk then indicated that he would withdraw the application. In light of what Mr McGuirk had said, the Tribunal decided that it would publish a decision concluding that the Tribunal did not have jurisdiction because there had been no valid application for internal review. This was a reversal of the Tribunal’s original view that it did have jurisdiction.
Appeal against costs order
6 Mr McGuirk appealed to the Appeal Panel against the Tribunal’s decision to award costs against him. In McGuirk v University of New South Wales [2006] NSWADT 39, the Appeal Panel made the following orders and directions:
7 A directions hearing took place on 16 November 2006 before Deputy President Hennessy to determine the future progress of the appeal. At that stage Mr McGuirk had notified the University and the Tribunal that he wished to pursue his application for costs against the University in the Tribunal proceedings. Mr Singleton made the point at that directions hearing that even though the Appeal Panel had found that the Tribunal made an error of law in awarding costs against Mr McGuirk, that did not mean that the order should be set aside. Rather, the matter should have been remitted to the Tribunal to decide again in accordance with law. Deputy President Hennessy listed the appeal for further hearing at which time Mr Singleton’s submission, and Mr McGuirk’s response to it, could be considered by the Appeal Panel. The matter was listed for hearing on 20 June 2007 and again on 17 August 2007 but both those dates were vacated. The matter was ultimately listed on 19 October 2007.
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.
19 October hearing
8 Mr McGuirk did not attend on 19 October 2007. The hearing proceeded in his absence and the following order was made:
9 The following directions are made:
The appeal is extended to the merits of the Tribunal’s decision in relation to the University’s application for costs.
10 The Tribunal sent a letter to Mr McGuirk advising him of this order and the directions on 22 October 2007. The letter also advised Mr McGuirk that he would be provided with a copy of the transcripts in relation to the proceedings as soon as they are available. Subsequently, the Tribunal was advised by those responsible for recording Tribunal proceedings that no transcript was available because the equipment had not been turned on. The Tribunal advised the parties of that fact.
1. In relation to Mr McGuirk’s application for costs before the Tribunal at first instance, that application is listed for dismissal at 9.30am on 9 November unless Mr McGuirk provides a satisfactory explanation for his non-attendance on 19 October 2007.
2. If Mr McGuirk provides an explanation that explanation is to be provided to the University and the University is to be given an opportunity to make written submissions as to the adequacy of that explanation.
3. If the Appeal Panel determines that the explanation is adequate, Mr McGuirk will be directed to file and serve any submissions in response to the application within 21 days. The University will be directed to file and serve any submissions in reply within a further 21 days. The Tribunal will then determine that matter.
4. In relation to the University’s application for costs before the Tribunal, Mr McGuirk is directed to file and serve any submissions in response to that application within 21 days. The University is directed to file and serve any submissions in reply within a further 21 days.
5. In relation to the University’s application for costs on the appeal, Mr McGuirk is directed to file and serve any submissions in response to that application within 21 days. The University is directed to file and serve any submissions in reply within a further 21 days.
11 In relation to the first direction, Mr McGuirk’s application for costs was dismissed on 9 November 2007 because no explanation had been provided for his non-attendance on 19 October 2007.
12 On 22 November 2007, Mr McGuirk sent a facsimile to the Tribunal saying that it was the first opportunity he had had for at least a month to conduct a systematic review of the status of the matter he currently has before the Tribunal. Mr McGuirk said he telephoned the Tribunal about this matter and then found the letter from the Tribunal dated 22 October 2007, which he had not opened. Mr McGuirk submitted that even though he had not opened the letter until 22 November 2007, he had informed the Tribunal on 23 October of his reason for not attending on 19 October 2007. That correspondence related to another matter (File No 053437) which had been listed for hearing on 23 October 2007.
13 His explanation for not attending the hearing on 23 October, and for not advising the Tribunal in advance of his inability to attend, was because of an application which he had made to the Local Court at Burwood on 19 October 2007 for a warrant to be issued pursuant to section 229 of the Criminal Procedure Act 1986 for the arrest of the Commissioner of New South Wales Police for alleged failure to comply with a court order. Mr McGuirk apologised for his oversight and for any inconvenience his non-attendance had caused. Mr McGuirk submitted that in those circumstances, the Tribunal should re-list the matter for directions. In a further letter to the Tribunal dated 25 November 2007, Mr McGuirk elaborated on the circumstances surrounding his application for the arrest of the Commissioner of Police.
14 The University submitted that the reasons Mr McGuirk’s gave for his non-attendance were not adequate because he knew as early as 6 August 2007 that the matter was listed on 19 October. He gave no reason for failing to advise the Tribunal in advance of his intention not to attend on that day. According to the University, even if the reasons given for his non-attendance in a different matter listed for 23 October are accepted as his reasons for not attending on 19 October, those reasons are inadequate. There is no rule of law, or ethical or other code of conduct applicable to Mr McGuirk (who is not legally qualified) that requires the criminal proceedings (of which in any event he was an applicant) to take precedence over civil proceedings. It was open to him to instruct a lawyer to appear on his behalf in either set of proceedings, but he chose not to do so. The fact that he is involved in numerous legal actions, involving the University and other parties, is not an excuse for his failure to notify the Tribunal or the University of his proposed non-attendance.
15 The Tribunal wrote to Mr McGuirk in the following terms:
16 We now provide those reasons. We accept that Mr McGuirk was in another court on 19 October 2007. However, he had been on notice of the hearing since 6 August 2007. If he was unable to attend on that day, he should have advised the Tribunal and the University prior to the hearing. He has not explained his failure to do so. Furthermore, Mr McGuirk had an opportunity to provide written submissions following the decision in the first matter. He has had ample opportunity to bring any relevant matters to the Appeal Panel’s attention. Consequently, we will determine the remaining issues on the basis of the evidence before the Tribunal, written submissions from both parties and Mr Singleton’s oral submissions to the Appeal Panel.
In accordance with directions made on 19 October 2007, Mr McGuirk’s application for costs before the Tribunal at first instance was dismissal at 9.30am on 9 November 2007. Mr McGuirk had not provided any explanation, within the time prescribed, for his non-attendance in relation to that matter.
In relation to the University’s application for costs before the Tribunal and the University’s application for costs on the appeal, the Appeal Panel is of the view that Mr McGuirk has not provided an acceptable explanation for his non-attendance at the hearing on 19 October 2007. Consequently, those issues will be determined on the basis of the submissions before the Tribunal on 19 October 2007. Reasons for the Appeal Panel’s view that Mr McGuirk’s explanation is not acceptable will be provided in the written reasons for decision.
The University’s Submissions as to Costs
17 The University’s submission as to costs is summarised in the Tribunal’s decision at [10] to [13]:
Mr McGuirk'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.
18 Mr McGuirk’s submissions as to costs are set out at [14] to [16] of the Tribunal’s decision:
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.
Reasoning and Conclusion
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.
19 The general rule in the Tribunal is that each party pays his or her own costs. There is an exception if the Tribunal is satisfied that there are special circumstances warranting an award of costs. Section 88(1) of the ADT Act states that:
20 Practice Note 12 sets out some examples of the kinds of conduct that may constitute special circumstances including whether a party has vexatiously conducted the proceedings and whether a party has made a claim that has no tenable basis in fact or law.
(1) 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.
21 The Chief Justice has commented that, “It may be that part of the purpose of section 88 is to remove the deterrent effect of an exposure to costs awards for citizens who challenge the conduct of government agencies.” (Director-General, Dept of Education and Training v MT (No 2 [2006] NSWCA 320 at [10] per Spigelman CJ.) Circumstances which may nevertheless justify an award of costs include unreasonable conduct that is out of the ordinary and conduct which is grossly unreasonable: Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 at [55] per Santow JA (Brownie AJA and Mason P agreeing. In that case the Court of Appeal found that the Tribunal had erred in failing to conclude that special circumstances existed where the respondent, through no fault of its own, was forced to pursue the litigation.
22 Mr McGuirk was on notice that the University’s view was that he had not made a valid application for internal review within the time allowed and that the Tribunal did not have jurisdiction to hear and determine his application. Mr Mullen wrote to him on 3 June 2005 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. If the question of the Tribunal’s jurisdiction had been unarguable then Mr McGuirk’s conduct in refusing to withdraw the application may have been sufficiently unreasonable to justify a costs order. However, in this case, the Tribunal itself was in some doubt about its jurisdiction. Judicial Member Montgomery had come to a preliminary view that even though there was no valid internal review application the Tribunal could still determine Mr McGuirk’s application. Judicial Member Montgomery pointed out to Mr McGuirk that there was some doubt about that view. It was at that point that Mr McGuirk withdrew the application.
23 The jurisdictional requirements under the FOI Act are complex. Although the University expressed a view about the Tribunal’s lack of jurisdiction, Mr McGuirk did not behave unreasonably in failing to immediately accept that view. Consequently we make no order as to costs in relation to the Tribunal proceedings.
24 If the University wishes to pursue its application for costs in relation to the Appeal Panel proceedings, it should advise the Registry of that intention within 14 days of the date of these reasons.
Orders
The University’s application for costs in Tribunal proceedings 053169 is refused.
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