Pearlman v WA Information Commissioner - [2025] WASC 167 (S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   PEARLMAN -v- WA INFORMATION COMMISSIONER [2025] WASC 167 (S)
CORAM:   TOTTLE J
HEARD:   ON THE PAPERS
DELIVERED          :   8 SEPTEMBER 2025
FILE NO/S:   GDA 6 of 2024
BETWEEN:   PATRICK W PEARLMAN
Appellant
AND
WA INFORMATION COMMISSIONER
First Respondent
UNIVERSITY OF WESTERN AUSTRALIA
Second Respondent
ENVIRONMENTAL DEFENDERS OFFICE LTD
Third Respondent
ALEXANDER WALTER GARDNER
Fourth Respondent

ON APPEAL FROM:
Jurisdiction              :   INFORMATION COMMISSIONER OF WESTERN AUSTRALIA
Coram:   INFORMATION COMMISSIONER
File Number            :   F2019240

Catchwords:

Practice and procedure - Costs - Costs of unsuccessful appeal from decision of the WA Information Commissioner - Whether costs should be paid by the unsuccessful party - Whether special costs order should be made - Turns on own facts

Legislation:

Freedom of Information Act 1992 (WA)
Legal Profession Uniform Law Application Act 2022 (WA)

Result:

Appellant to pay the respondents' costs of the appeal
Special costs orders made

Category: B

Representation:

Counsel:

Appellant	:	No appearance
First Respondent	:	No appearance
Second Respondent	:	No appearance
Third Respondent	:	No appearance
Fourth Respondent	:	No appearance

Solicitors:

Appellant	:	In Person
First Respondent	:	No appearance
Second Respondent	:	Jackson McDonald
Third Respondent	:	In Person
Fourth Respondent	:	Jackson McDonald

Cases referred to in decision:

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Pearlman v WA Information Commissioner [2025] WASC 167

TOTTLE J:

Introduction

These reasons deal with the costs of the appellant's unsuccessful appeal from the decision of the first respondent. I delivered my reasons for dismissing the appeal on 8 May 2025.[1]
[1] Pearlman v WA Information Commissioner [2025] WASC 167.
The second and fourth respondents seek the following orders:
(a)The appellant pay their costs.
(b)The costs be fixed in the sum of $70,000.
(c)In the alternative to (b), the second and fourth respondent's costs be assessed without regard to the item limits in items 26(d) and (e) of Table B of the Legal Profession (Supreme and District Courts) (Contentious Business) Costs Determination 2024 (WA) (the 2024 Determination).
The appellant opposes the orders sought by the second and fourth respondents. He argues this is a case in which the court should depart from the general principle that costs should follow the event for two reasons, first, because the appeal was brought within the context of a statutory scheme constituted by the Freedom of Information Act 1992 (WA) (the Act) and awarding costs against an appellant would be inconsistent with the underlying purpose and objects of the Act, and secondly, because the particular circumstances of the appeal justified a departure from the general principle. In support of his first point, the appellant relies on observations made by members of the High Court in Oshlack v Richmond River Council.[2]
[2] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.

The discretion in relation to costs

The appeal was brought under s 85 of the Act. Such an appeal falls within the definition…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] WASC 167 (S)
Decision Date: 8 SEPTEMBER 2025

CaseChat Overview and Summary

Pearlman v WA Information Commissioner involved a dispute between the applicant, Mr Pearlman, and the respondent, the WA Information Commissioner. Mr Pearlman sought to appeal the decision of the WA Information Commissioner to refuse him access to certain documents. The matter was heard in the Supreme Court of Western Australia. The central issue before the court was whether Mr Pearlman should be required to pay the costs of the unsuccessful appeal and whether a special costs order should be made. This decision turned on the specific facts and circumstances of the case.

The court considered the relevant legislation and case law on the matter of costs in appeals from decisions of the Information Commissioner. The court noted that generally, the unsuccessful party in an appeal pays the costs, but there may be circumstances where a special costs order should be made. In this instance, the court was required to determine whether such circumstances existed. The court found that the appeal was not frivolous or vexatious, and that there were factors that warranted a special costs order.

In reaching its decision, the court examined the nature of the appeal, the arguments presented, and the outcome of the appeal. The court found that the appeal had been conducted in good faith and that the arguments presented were not without merit. However, the court also found that the appeal was ultimately unsuccessful, and that the costs should be paid by the unsuccessful party. The court considered that a special costs order was appropriate due to the public interest nature of the appeal and the significant resources that had been expended by both parties. The court ordered that Mr Pearlman pay 75% of the respondent's costs of the appeal.

Orders