Sawires v Commissioner of Police, NSW Police

[2006] NSWADT 34

CITATION:	Sawires v Commissioner of Police, NSW Police [2006] NSWADT 34
DIVISION:	General Division
PARTIES:	APPLICANT Emad Sawires RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	053073
HEARING DATES:	9/12/05
SUBMISSIONS CLOSED:	12/09/2005
DATE OF DECISION:	02/02/2006
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Costs
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Cachia v Hanes (1994) 179 CLR 403 Cachia v Hanes (1991) 23 NSWLR 304
REPRESENTATION:	APPLICANT In person RESPONDENT W Pisani, agent
ORDERS:	1. Application dismissed; 2. No order as to costs.

1 On 4 March 2005, Mr Sawires applied to the Tribunal for a review of a decision made by NSW Police in relation to documents he requested under the Freedom of Information Act 1989. Those documents included video tapes of police interviews with Mr Sawires. During the period from April to November 2005, the parties attended seven planning meetings in an attempt to resolve the matter. Finally, on 15 November 2005, Mr Sawires indicated that all his outstanding concerns had been addressed and the matter was finalised. However, before asking the Tribunal to dismiss the matter, he requested that an order be made in his favour for costs. Mr Sawires was not legally represented and the costs he sought were confined to his attendance at the Tribunal for planning meetings on seven occasions. He claimed a total of 14 hours of attendance time at the Tribunal, being attendance for two hours on 7 occasions, at the rate of $45.00 per hour. The parties were asked to provide written submissions in relation to that issue and I have determined the question “on the papers” in accordance with s 76 of the Administrative Decisions Tribunal Act 1997 (ADT Act). No submissions were received from NSW Police.

Relevant Law

2 Section 88 of the ADT Act sets out the Tribunal's power to award costs in proceedings. That section provides that:

(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.

(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 the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 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.
. . .

3 In Cachia v Hanes (1994) 179 CLR 403 a litigant in person sought to charge for the time which he had given to the preparation and presentation of his case. The majority of the Court said (at 409):

The “costs” provided for the in Rules do not include time spent by a litigant who is not a lawyer in preparing and conducting his case. They are confined to money paid or liabilities incurred for professional legal services. It is only in that sense that the Rules speak of “costs”.

4 The relevant Rules were the Rules of the New South Wales Supreme Court. The only definition of “costs” in the ADT Act is in s 88(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.

5 In my view this definition should be interpreted in the conventional sense, that is remuneration for work performed by a solicitor or barrister. Handley J pointed out in Cachia v Hanes (1991) 23 NSWLR 304 at 317 that the right of a litigant to appear in person was never intended to be a means by which litigants could earn fees or charge for remuneration. His Honour went on to say that, “It is a practice which enables them to save money, not make money.”

6 Even if I was satisfied that there were special circumstances warranting an award of costs, Mr Sawires is not entitled costs because he did not incur any liability for professional legal services. I make the following orders:

1. Application dismissed.

2. No order as to costs.