McGuirk v Vice-Chancellor, University of New South Wales (No 3)

[2009] NSWADTAP 47

Appeal Panel - Internal

CITATION:	McGuirk v Vice-Chancellor, University of New South Wales (No 3) [2009] NSWADTAP 47
PARTIES:	APPELLANT Michael McGuirk RESPONDENT Vice-Chancellor, University of New South Wales
FILE NUMBER:	069052
HEARING DATES:	27 November 2008
SUBMISSIONS CLOSED:	13 July 2009
DATE OF DECISION:	5 August 2009
BEFORE:	Needham J SC - Deputy President; Handley R - Deputy President; Antonios Z - Non-Judicial Member
CATCHWORDS:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1977 Uniform Civil Procedure Act 2005
CASES CITED:	McGuirk v. Vice Chancellor, University of New South Wales [2007] NSWADTAP 22 McGuirk v. University of New South Wales [2008] NSWADT 74 McGuirk v. Vice Chancellor, University of New South Wales [2009] NSWADTAP 43 BE v. University of Technology, Sydney [2009] NSWADTAP 22 Corrigan & Gibson v Watson [2009] NSWADT 110 Maiden v Maiden (1909) 7 CLR 727 Wentworth v Rogers (No 3) (1986) 6 NSWLR 642
REPRESENTATION:	APPLICANT In person RESPONDENT P Singleton, barrister
ORDERS:	1. Order that the appellant pay the costs of the University, and of Peter Singleton (for the period during which he was named as a party to the proceedings) of and incidental to the appeal.

1 In the substantive decision in this appeal ([2009] NSWADTAP 43, “the appeal decision”), the Appeal Panel ordered that any party seeking an order for costs serve submissions on or before 13 July 2009 and that the application would be determined on the papers.

2 The facts of the matter are set out in the appeal decision, but briefly, the appellant, Mr McGuirk, was ordered to pay the costs of a directions hearing which was made necessary by his disrupting an earlier planning meeting being conducted by the President, Judge O’Connor. Mr McGuirk had also sought to be granted leave to represent the party on the record in those proceedings as a “McKenzie Friend”, and that application was refused. When the order for costs of the directions hearing was made, Mr McGuirk sought an order that the University of New South Wales (“the respondent” or “the University”) pay his costs.

3 Mr McGuirk was entirely unsuccessful in his appeal against the orders of the President. The issues arising out of the appeal from the McKenzie Friend point were dismissed on a summary basis at the beginning of the hearing for a lack of standing.

4 The University and Mr Peter Singleton, in his capacity as a person originally joined as a party to the proceedings, each filed submissions in support of an application for costs. We will deal with each application separately.

The Tribunal’s power to award costs

5 Section 88 of the Administrative Decisions Tribunal Act 1997 provides:

“88 Costs

(1) Each party to proceedings before the Tribunal is to bear the party’s own costs in the proceedings, except as provided by this section.

(1A) 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 it is fair to do so having regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or

(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or

(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or

(iv) causing an adjournment, or

(v) attempting to deceive another party or the Tribunal, or

(vi) vexatiously conducting the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) any other matter that the Tribunal considers relevant.

(2) The Tribunal may:

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.

(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.

(4) In this section, costs includes:

(a) costs of or incidental to proceedings in the Tribunal, and

(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.

6 The costs provisions of s 88 apply to proceedings of the Appeal Panel.

7 Accordingly, the scheme of the legislation is based upon a general position that each party bear their own costs of proceedings, win, lose or draw. That position is subject to the Tribunal being satisfied that to do otherwise is fair, after review of the factors set out in sub-section 88(1A).

8 Costs have been awarded under s 88 in a number of decisions, including BE v. University of Technology, Sydney [2009] NSWADTAP 22; (in which costs were awarded); and Corrigan & Gibson v Watson [2009] NSWADT 110 (in which costs were refused).

The University’s application for costs

9 The University seeks that Mr McGuirk pay its costs of and incidental to the proceedings on the basis that there are “special circumstances” warranting that order.

10 The submissions noted that there were three main areas of the appeal; against the costs order, against the McKenzie Friend order, and against the failure to award costs in favour of Mr McGuirk. These areas fall into different categories.

11 Firstly, the McKenzie friend issues were dismissed (see paras 19-31 of the appeal decision) for lack of standing. Those grounds of appeal were not part of the preliminary decision on jurisdiction made by Judge Karpin on 7 March 2007 (McGuirk v. Vice Chancellor, University of New South Wales [2007] NSWADTAP 22).

12 Secondly, the appeals against the costs order was unsuccessful. Normally this would be insufficient to ground an order for costs, given that the general position of the Tribunal is that each party pay their own costs of any proceedings, regardless of success (cf Uniform Civil Procedure Rules r 42.1, where the general rule is that costs follow the event and are thus paid by the unsuccessful party).

13 However, in this case, the University points out that “the value of the costs order (before the President) will be destroyed if the University must now bear its own costs of the appeal, for the costs of a single directions hearing ... were far less than the costs of the protracted appellate proceedings . Indeed ...the University will be in a worse position than if the President had never made his order in the first place”. (words in italics added).

14 The University also pointed to the “reprehensible” behaviour of Mr McGuirk in disrupting the planning meeting which led to the costs order. In addition, the manner in which he conducted his appeal, as well as the evidence sought to be adduced and the submissions sought to be made, added greatly to the costs of the appeal. In addition he joined Mr Singleton, counsel for the University, as a party, forcing the University to incur more costs, and submitted that the Appeal Panel had no jurisdiction to hear the appeal he had filed with it before Judge Karpin.

15 Thirdly, it was submitted that the application for Mr McGuirk’s costs before the President was frivolous at the time and the appeal from the refusal to award those costs even more so.

Mr Singleton’s application for costs

16 Mr Singleton, counsel for the University, also sought costs. As noted above, Mr Singleton was joined as a party and orders were sought against him in the Notice of Appeal that he personally pay the costs of the appeal and of the proceedings below.

17 Mr Singleton points out that he had appeared for the University at the directions hearing. It was the first time he had been retained to act for the University against Mr McGuirk. When the Amended Notice of Appeal was filed (on 28 May 2007) it did not include orders against Mr Singleton.

18 In support of his application for costs, Mr Singleton submits that “there was no basis whatsoever for me to be joined in the appellate proceedings, but it led to the incurring of legal costs”.

Mr McGuirk’s position

19 Mr McGuirk has made no submissions in support of any position on costs. However, he did send a fax to the Registrar, copied to the solicitor for the University, on 17 July 2009 (four days after the deadline for a submission on costs). That fax noted:-

a)the contents of a “without prejudice except as to costs” letter sent to the University (not to Mr Singleton) which said:-

“... Please now be advised that unless the University of New South Wales is prepared to negotiate an “alternative solution” to the problem which Mr Peter Singleton of counsel caused when he – quite improperly – applied for costs to be awarded against Mr Peter Curtin and myself, I propose to exercise the rights conferred on me under the Administrative Decisions Tribunal Act 1997, and the Supreme Court Act 1970” (those rights being the right to appeal to the Court of Appeal);

b)that the University rejected that offer (without indicating the manner or nature of that rejection):

c)the contents of a fax of 5 November 2008, which is not relevant to the issue of costs; and a request that the Appeal Panel deal with the costs aspect of this matter “in a manner which would make that decision defensible before the Court of Appeal” (italics in original).

20 Mr McGuirk makes no application for costs, although we can infer that the reference to an offer made “without prejudice except as to costs” should have some bearing on whether costs should be awarded against him or not.

Consideration of applications

21 The first question which must be asked is whether or not it is “fair” to order costs against Mr McGuirk. The matters which must be taken into account are those in sub-s 88(1A)(a)-(e).

22 In considering those matters, it appears to us that Mr McGuirk did indeed “conduct the proceedings in a way which unnecessarily disadvantaged another party to the proceedings”. He filed voluminous, irrelevant material, and sought to re-open Mr Curtin’s Freedom of Information proceedings by referring to the dispute out of which those proceedings arose. He did so by way of seeking to justify his “reprehensible” conduct at the planning meeting. The volume, breadth, tenor and irrelevance of much of the material was significant. Most of it was excluded, but the University was required to digest, consider and answer it (or much of it) in a way which incurred legal costs in doing so. The attempt to introduce submissions (in which was included a deal of evidence) by way of a Power Point presentation at the hearing required consideration of that material after the hearing had finalised.

23 In addition, Mr McGuirk’s evidence sought to throw mud at all and sundry involved with the University’s defence of these proceedings. Mr McGuirk has sought to have a number of Tribunal members disqualified from hearing his proceedings for reasons which are often spurious (see Ms Needham SC’s decision in McGuirk v. University of New South Wales [2008] NSWADT 74 as just one example). In addition, despite leave being refused to issue Summonses to various persons including Judge O’Connor, Mr McGuirk sought to call those persons to give evidence at the hearing without a Summons.

24 The Tribunal is also empowered to consider “the nature and complexity of the proceedings”. Generally a costs order is one which involves an exercise of discretion, and the principles which guide appeals from such orders are well settled – see Maiden v Maiden (1909) 7 CLR 727, Wentworth v Rogers (No 3) (1986) 6 NSWLR 642. An application of those principles should not result in a Notice of Appeal which went through multiple amendments and resulted in the amount of paper which was before the Appeal Panel.

25 The appeal from the McKenzie Friend issue was doomed to failure, for the reasons set out in the appeal decision. It should never have been brought. Likewise, the application by Mr McGuirk for his costs was frivolously brought; he was unrepresented, and seeking to intervene at the planning meeting by way of appointment as a McKenzie Friend. There was no basis for making any costs order in his favour.

26 In total, and having considered the various factors raised by the University and observed by the Appeal Panel during the hearing, we are able to reach a state of comfortable satisfaction that it is fair to award costs in favour of the University against Mr McGuirk of and incidental to the various hearings on the appeal.

27 Once we have reached that point, we need to consider whether the “Calderbank” letter of 8 July 2009 (referred to in paragraph 20 a. above) should deprive the University of the benefit of a costs order it would otherwise be entitled to.

28 It seems to us that the offer set out in the fax was not an offer which was capable of acceptance in the terms in which it was made. In order for a Calderbank offer to have an effect on costs, its rejection must be “unreasonable” – see Jones v Bradley (No 2) [2003] NSWCA 258. A simple offer to enter into negotiations on (presumably) costs in exchange for not exercising a right of appeal does not appear to involve “a real and genuine element of compromise”: Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375. Accordingly, we are not of the view that the offer and its alleged rejection should have any impact on whether the University should have an order for costs.

29 As for Mr Singleton, as counsel for the University, the Appeal Panel agrees that he should never have been joined as a party to the original Notice of Appeal. There was no reason to do so apart from the obtaining by Mr McGuirk of a tactical advantage, and such conduct is not fair and should attract an award of costs.

Orders

30 Order that the appellant pay the costs of the University, and of Peter Singleton (for the period during which he was named as a party to the proceedings) of and incidental to the appeal.