Schoeman v Department of Attorney General and Justice
[2011] NSWADT 308
•23 December 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Schoeman v Department of Attorney General and Justice [2011] NSWADT 308 Hearing dates: On the papers Decision date: 23 December 2011 Jurisdiction: General Division Before: Judicial Member N Isenberg Decision: The respondent to pay the applicant's costs as agreed, or in default of agreement, as assessed.
Catchwords: costs Legislation Cited: Government Information (Public Access) Act 2009 Category: Costs Parties: Fiona Schoeman (Applicant)
Department of Attorney General and Justice (Respondent)Representation: Norton Rose (Applicant)
Crown Solicitor (Respondent)
File Number(s): 113021
reasons for decision
Background
On 1 November 2010 the applicant alleged an application under the (repealed) Freedom of Information 1989 . She requested access to:
1) full and complete report by Graham Evans dated approx. May 2008: and
2) the two (2) documents above were provided by Graham Evans, Director, Corporate HR Solutions, level 8 34 Hunter Street Sydney New South Wales 2000 regarding an investigation he conducted during December 2007 to May 2008 on a NSW Attorney General's Department corruption matter involving Brendan Thomas and Rosa Massara.
A determination was made under the Government Information (Public Access) Act 2009 (GIPA Act) and the applicant was provided with the entire document with material claimed to exempt deleted.
Dissatisfied with this response, the applicant sought review by this Tribunal. In response, the respondent, in its submissions of 11 July 2011, wrote that it proposed to release the body of the document without any reductions ('the full report'). There were however a number of missing attachments to the full report.
The matter came before me for Planning Meetings, preparatory to listing the matter for hearing. In July 2011 the parties informed me that the matter had been settled other than as to costs and, after some delay, 'short minutes of order' dated 21 October 2011 were filed.
When it was foreshadowed at the Planning Meetings that the matter had been settled I encouraged the parties to give further consideration to the costs issue and adjourned so that they could make submissions as to costs in the event that no agreement could be reached. It is apparent that the parties have, regrettably, preferred to adopt that cumbersome and expensive course rather than negotiate further on the limited issue of costs.
Therefore the only issue to be decided is as to costs.
Legislative background
The Tribunal's power to award costs is found in S88 of the Administrative Decisions Tribunal Act 1997 . As a general rule each party pays his or her own costs: S88(1) (see Law Society of NSW v Dimitriou (No 2) [2010] NSW ADT 37 , Kyriacou v Chief Commissioner of State Revenue [2009] NSWADT 175, Alramon Pty Ltd v Jonamill Pty Ltd (No 2) [2009] NSWADT 302.)
Despite the general rule, the Tribunal may order one party to pay the other party's costs 'only if it is satisfied that it is fair to do so having regard to' criteria which are set out in S88(1A):
(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.
(Tribunal underlining)
Consideration
As I have observed , the general rule is that each party will pay its own costs in matters before the Tribunal. The applicant submitted however, that in the circumstances of her case, it is fair that the respondent pay her costs. Fairness is the underlying feature of the criteria listed in S88(1A). As the Court of Appeal said in AT v Commissioner of Police, NSW [2010] NSWCA 131 at [33] :
... Although an order varying the general rule may be made "only if" the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order. The criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. The circumstances in which fairness may be identified are indicated by the specific attributes listed in sub-s (1A), but subject to the generality of paragraph (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b) -(g) of the Tribunal Act .
Both parties provided very detailed submissions; indeed the submissions of the respondent - some 30 pages - can only be described as voluminous. I observe that recently the Court of Appeal in Silverbrook Research Pty Ltd v Lindley [2010] NSWCA 357 directed that, in that matter, submissions as to costs were not to exceed two pages. One might speculate that the significant effort and expense in formulating the submissions in the present matter might have been better directed towards reaching a compromise position on costs. Nevertheless, those submissions have been helpful to me in my present consideration.
I observe in that regard that in S881A(a) there are a number of examples of how a party may have conducted the proceedings which may have unnecessarily disadvantaged the other party to the proceedings. The list however is not exhaustive. S88A(e) also permits the Tribunal to take into account any other matter that it considers relevant.
Section 88(1A) of the ADT Act empowers the Tribunal to award costs "in relation to proceedings before it" having regard to certain enumerated factors: s. 88(1A)(a)-(d) . I agree generally with the submission of the respondent that these factors are specific to matters relating to the "proceedings". I observe however that s 88(1A)(e) permits the Tribunal to take into account any other matter that it considers relevant and does not limit those considerations to the proceedings.
The applicant also submitted that the Tribunal should exercise its discretion in relation to costs because of (pre-application for review) conduct. While I place limited weight on the respondent's conduct before the proceedings were commenced, it remains that, it was only due to the applicant's perseverance by bringing the application for review that the full report was released to her (to the extent that the Respondent continued to hold the complete report).
The applicant relied on AT v Commissioner of Police [2010] NSWCA 131 (at [32]) the Court of Appeal held that in a dispute as to the construction of complex and unclear provisions in a State Act, a State agency should act as a model litigant and may have to bear the costs of its unsuccessful resistance to an application. The applicant contended that the fact that the Tribunal has not made a determination in this matter (due to consent orders being filed) should not detract from the force of the argument that where a State agency unsuccessfully resists an application by an individual in circumstances where there are no settled principles on the construction of State legislation, the obligations on the State agency are such that it may have to bear the applicant's costs.
In AT, Basten J said (at [33], McColI and McFarlane JJ agreeing):
Although an order varying the general rule [in s 88] may be made "only if the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order. The criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. The circumstances in which fairness may be identified are indicated by the specific attributes listed in sub-s (I A), but subject to the generality of paragraph (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b)-(g) of the Tribunal Act (emphasis added).
The objects specified in s 3(b)-(g) of the ADT Act are:
b)to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair,
c)to enable proceedings before the Tribunal to be determined in an informal and expeditious manner,
d)to provide a preliminary process for the interned review of reviewable decisions before the review of such decisions by the Tribunal
e)to require administrators making reviewable decisions to notify persons of decisions affecting them and of any review rights they might have and to provide reasons for their decisions on request,
f)to foster an atmosphere in which administrative review is viewed positively as a means of enhancing the delivery of services and programs,
g)to promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales
Unlike the Freedom of Information Act , the GIPA Act requires an agency to undertake 'such reasonable searches as may be necessary to find any of the government information applied for ...' : s53(2). While, at the time the proceedings were commenced, there were no decided cases under the GIPA Act, it was clear on the face of the Act that an agency, if unable to produce all the government information to which a request referred, would, on review, need to supply evidence that it had complied with S53 in respect of the steps it had taken to locate the missing government information. I accept that the applicant was put to significant legal expense in obtaining legal advice and representation in prosecuting the application for review in circumstances where the respondent had, at that time, apparently taken no steps to address that statutory requirement, while maintaining its position that the missing documents are unable to be located. Had the matter not settled it would have been open to the applicant to have the Tribunal review the respondent's 'decision' that it did not hold the annexures: S80(e). Importantly, in my view, the respondent did not at any stage address the 'adequacy of search' tests in S53(2) -(5).
Some documents remain, inexplicably, lost. The applicant submitted, and I agree, that the respondent's failure in terms of document management is also a factor that weighs in favour of her application for a costs order. The failure of the respondent in terms of document retention and management led to the difficulties in progressing the matter at the Planning Meetings, at which I expressed my concerns about the missing documents and indicated that I was contemplating referring the matter to the Information Commissioner under s111 of the GIPA Act. The applicant submitted that a foreshadowed Supreme Court challenge by the respondent to the s 111 referral further delayed the resolution of the matter and may have resulted in additional costs to the applicant.
It was submitted that the lost documents also affected the process of agreeing to the terms of the proposed notation on the Consent Orders and also considerable confusion as to which documents were attached to report. I do not, however, take this into account because I do not propose to go behind the Short Orders that have been filed.
The applicant also noted that it had been prepared to make oral submissions on costs at the Planning Meeting on 12 July 2011, but the respondent was not in a position to do so and therefore the Tribunal had no alternative other than to order the parties to file written submissions on costs.
ADR
Although not necessary to the consideration of the Order I propose to make I make the following observation in relation to the applicant's assertion that the Respondent's failure to agree to mediation led to the applicant incurring additional costs. There was some dispute between parties in their submissions as to the preparedness of the respondent, in particular, to participate in mediation. I do not propose to canvass those submissions in detail. Suffice to say, mediation is offered by the Tribunal to parties, almost routinely. It is useful if parties think a Tribunal-facilitated mediation may assist in the resolution of their dispute. One of the hallmarks of this, and many forms of alternative dispute resolution (ADR), is that little purpose is to be served in adopting that course if one or other of the parties is reluctant to participate. There may be many reasons for a dis-inclination to proceed down the ADR route but a feature of all ADR strategies is that the parties must have a preparedness to compromise their positions in the interests of resolving the matter.
In this matter, ultimately it seems to me that little purpose would have been served in mediation. 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. In those circumstances, realistically, no compromise position was available to either party.
ADR processes, if unsuccessful in resolving the dispute, may serve to narrow the issues between the parties. In this matter the outstanding issue was clear. It is speculative whether, in the course of the process information could have been provided to the applicant which would have assuaged her concerns about the missing documents.
I do not consider the applicant's assertion in relation to ADR to be a factor in favour of ordering costs in the applicant's favour.
In this matter I consider there are good reasons for departure from the general rule and in my opinion it would be fair to order the respondent to pay the applicant's costs.
Order
The respondent to pay the applicant's costs as agreed, or in default of agreement, as assessed.
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Decision last updated: 23 December 2011
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