Schoeman v Department of Attorney General and Justice

[2013] NSWCA 88

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Schoeman v Department of Attorney General and Justice [2013] NSWCA 88

Hearing dates:

28 March 2013

Decision date:

28 March 2013

Before:

Meagher JA at [1]-[16], [18], [20];
Emmett JA at [17], [19]

Decision:

1. Application for leave to appeal refused.

2. Applicant to pay the respondent's costs of the application.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - application for leave to appeal from decision of Appeal Panel of Administrative Decisions Tribunal re-exercising discretion as to costs under s 88(1A) of Administrative Decisions Tribunal Act 1997 - no identifiable error of law in Appeal Panel's decision - leave refused

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Government Information (Public Access) Act 2009

Cases Cited:

Department of Attorney General and Justice v Schoeman [2012] NSWADTAP 31

Category:

Interlocutory applications

Parties:

Fiona Schoeman (Applicant)
Department of Attorney General and Justice (Respondent)

Representation:

Counsel:
In person (Applicant)
Mr M Dalla-Pozza (Respondent)
Solicitors:
Unrepresented (Applicant)
I V Knight, Crown Solicitor (Respondent)

File Number(s):

2012/266687

 Decision under appeal 

Citation:

Department of Attorney General and Justice v Schoeman [2012] NSWADTAP 31

Date of Decision:

2012-08-03 00:00:00

Before:

Deputy President Hennessy

File Number(s):

129002

Judgment

1. MEAGHER JA: This is an application for leave to appeal from a decision of Deputy President Hennessy, sitting as the Appeal Panel of the Administrative Decisions Tribunal of New South Wales.

1. Section 119 of the Administrative Decisions Tribunal Act 1997 (the ADT Act) confers a right of appeal from a decision of the Appeal Panel to the Supreme Court on a question of law. Leave to appeal is required in this case because the relevant decision was one as to costs: see s 119(1A)(c) of the ADT Act.

1. That costs decision was made in the following circumstances. The applicant, Ms Schoeman, applied to the respondent Department for a copy of an investigation report prepared in 2008 following a grievance Ms Schoeman lodged against another employee of the Department. The application was made under the Government Information (Public Access) Act 2009 (the GIPA Act). The Department provided a copy of the report with certain parts redacted and without any attachments. Ms Schoeman applied to the Tribunal for a review of the Department's decision to do so. That application was eventually resolved by the making of consent orders. There remained the question of the costs of Ms Schoeman's application. That issue was determined by the Tribunal following the receipt of written submissions by the parties. On 23 December 2011, the Tribunal ordered the Department to pay Ms Schoeman's costs as agreed or assessed. That costs order was made under s 88 of the ADT Act.

1. The Department appealed from that decision to the Appeal Panel. In its decision delivered on 3 August 2012, the Panel extended the appeal to a review of the merits of the Tribunal's decision pursuant to s 113(2)(b): Department of Attorney General and Justice v Schoeman [2012] NSWADTAP 31. It then set aside the Tribunal's decision that the Department pay Ms Schoeman's costs and, in the exercise of its power under s 115, made a decision in substitution for that decision of the Tribunal, namely, that Ms Schoeman's application for a costs order be dismissed.

1. The Appeal Panel set aside the Tribunal's costs decision on two bases. The first was that it involved material errors of law. The second was that the Tribunal had made errors of fact and failed to make findings of fact.

1. The errors of law identified included that the Tribunal had made findings for which there was no supporting evidence. They included a finding that the Department had taken no steps to address its statutory obligation under s 53(2) of the GIPA Act to undertake "reasonable searches" in relation to the documents which were originally attachments to the report; and a finding that those attachments had been lost because of failures in the record management system of the Department.

1. Having determined to set aside the costs order, the Appeal Panel re-exercised the discretion to order costs under s 88 of the ADT Act. At the same time, it rejected an application by Ms Schoeman that that question should be remitted to the Tribunal.

1. The Appeal Panel identified the relevant principles applicable to the exercise of the discretion under s 88(1A). It then considered each of the matters put forward by Ms Schoeman as relevant to the exercise of that discretion. In particular, it considered whether the Department's case justifying the redacting of information from the report had no tenable basis in fact or law. Having considered those matters, the Appeal Panel concluded:

"[88] Having read each party's submissions, I am unable to conclude that the Department's case had no tenable basis in law or fact, nor was its case so weak as to justify a costs order. An evaluative judgment needs to be made as to where the public interest lies. Reasonable minds may differ as to where the balance should be struck.

[89] I accept Ms Schoeman's submission that the Department failed to comply with the requirements of the GIPA Act in relation to consultation. In certain circumstances, an agency must take such steps as are reasonably practicable to consult with a person before providing access to information relating to the person: GIPA Act, s 54. The Department did not consult with any of the people whose personal information was contained in the Report until directed to do so by the Tribunal. The Department did not provide an explanation as to why no steps had been taken prior to that time.

[90] While failure to consult is a relevant matter, it does not satisfy me that it is fair in all the circumstances to award costs. In determining whether it is fair to award costs, I have taken into account the history of this matter including that the Department agreed to provide a full copy of the report as soon as the consultation process had been completed. I also accept the Tribunal's understanding of the dispute set out at [22] which was that "the sticking point between the parties was that the respondent was unable to produce the annexures to the report sought by the applicant because, it said, it did not have them." For the reasons given the fact that the documents could not be found does not make it fair to award costs."

1. Ms Schoeman has represented herself on the hearing of her application for leave to appeal. She has also submitted a lengthy written summary of her argument as well as a draft notice of appeal which identifies three grounds of appeal and includes written submissions in relation to each of those grounds.

1. I will deal with those three grounds separately.

1. Grounds 2 and 3 are that the Appeal Panel failed to give adequate and detailed reasons, failed to have regard to submissions and evidence and failed to accord procedural fairness and natural justice.

1. Ms Schoeman's written and oral submissions do not identify any respect in which the Appeal Panel failed to give adequate reasons for its decision or failed to hear and consider her arguments. It does not follow, from the fact that the Panel rejected Ms Schoeman's arguments, that they were not properly considered. In relation to the re-exercise of the discretion as to costs, each of the matters which Ms Schoeman said should be taken into account was addressed by the Panel at [80]-[90].

1. Ground 1, as formulated, is that the Appeal Panel incorrectly interpreted the Tribunal's decision. In support of that ground, Ms Schoeman argues that the Appeal Panel misinterpreted the decision of the Tribunal and that because the Tribunal had conducted planning meetings and presided over the underlying inquiry from the outset, it was sufficiently familiar with the subject matter of her complaint to make the observations and findings which it made, and to then take those findings into account in the exercise of its discretion as to costs.

1. The problem with that being the position, as the Appeal Panel observed, was that there had been no hearing directed to some of the issues on which the Tribunal made findings for the purpose of exercising the costs discretion and no evidence directed to the matters which were the subject of those findings. Ms Schoeman has not, in her written or oral submissions, formulated an arguable basis for concluding that the Appeal Panel was incorrect to conclude that there was no evidence led at a hearing at which the matters which were the subject of findings by the Tribunal were in issue and addressed.

1. There is one other matter that I should mention. Ms Schoeman also seeks by her notice of appeal to argue the merits of the Appeal Panel's decision on costs and to reopen her application, resolved before the Tribunal, for production of the attachments to the investigation report. She also seeks orders for the production of some of the written submissions filed by the Department in the proceedings before the Tribunal. None of these matters is relevant to or can be raised in support of any appeal to this Court from the Appeal Panel's decision on a question of law. This Court has no power to extend the scope of the appeal to enable it to consider the merits of the Appeal Panel's decision on the question of costs or to deal with the other matters raised by Ms Schoeman.

1. In summary, the written and oral argument and grounds of appeal do not identify any respect in which it appears that the Appeal Panel made an error of law. For that reason, the proposed appeal does not have reasonable prospects of success. Leave to appeal should be refused.

1. EMMETT JA: I agree that leave to appeal should be refused for the reasons given by Justice Meagher.

1. MEAGHER JA: The order of the Court is that the application for leave to appeal is dismissed. The respondent applies for its costs of the application for leave to appeal. The only matter raised by the applicant in response to that application is one which goes to the merits of the application. The application having been dismissed, in my view the ordinary rule should follow and the applicant should pay the costs of the respondent of the application.

1. EMMETT JA: I agree that there is no reason for departing from the normal rule that the costs should follow the event.

1. MEAGHER JA: The order of the Court is that the applicant pay the respondent's costs of the application.

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Decision last updated: 18 April 2013