Templeton v Office of Environment and Heritage (No. 2)

[2017] NSWCATAD 225

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Templeton v Office of Environment and Heritage (No. 2) [2017] NSWCATAD 225
Hearing dates:	On the papers
Date of orders:	17 July 2017
Decision date:	17 July 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	(1) The Applicant is to pay the Respondent’s costs of the proceedings from 5 July 2016, in an amount not exceeding $1,000, as agreed or assessed.
Catchwords:	COSTS – Whether special circumstances warrant an award of costs – Applicant failed to attend scheduled planning meeting – Whether applicant conducted proceedings in way that unnecessarily disadvantaged respondent
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009
Cases Cited:	Bischoff v Sahade & Owners Corporation SP 62022 [2015] NSWCATAP 196 eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 Latoudis v Casey (1990) 170 CLR 534 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Nguyen & Anor v Perpetual Trustee Company Ltd; Perpetual Trustee Company Ltd v Nguyen & Anor (no 2) [2016] NSWCATAP 168 Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 Shlack v Richmond River Council (1998) 193 CLR 72 Templeton v Office of Environment & Heritage [2016] NSWCATAD 312
Category:	Costs
Parties:	David Templeton (Applicant) Office of Environment and Heritage (Respondent)
Representation:	Counsel: J Coghlan, Agent (Applicant) M Moore, Agent (Respondent)
File Number(s):	1610140

REASONS FOR DECISION

1. This is an application for costs by the Office of Environment and Heritage (“the OEH”) in relation to proceedings in regard to an access application by Mr Templeton (“the Applicant”) under the Government Information (Public Access) Act 2009 (“the GIPA Act”).

2. The decision in the substantive matter is recorded as Templeton v Office of Environment & Heritage [2016] NSWCATAD 312. The history of the matter is set out in that decision.

3. As noted, the matter was listed for dismissal after the Applicant failed to appear at a case conference in June 2016. The OEH did not appear at the dismissal hearing in July 2016 and the matter was reinstated at the request of the Applicant’s agent, Mr Field. A timetable was set for the further prosecution of the matter on the basis of a narrowed scope of the request and the matter was listed for hearing in September 2016.

4. The matter was ultimately heard and determined in October 2016. I determined that the decision that the information that was requested is not held by the OEH was the correct one and therefore it should be affirmed.

The Issue before the Tribunal

5. The issue for determination is whether there are circumstances in this matter which warrant an award of costs.

Applicable legislation

6. Section 36 of the Civil and Administrative Tribunal Act 2013 (“the NCAT Act”) sets out the guiding principle applicable to practice and procedure in matters before the Tribunal and the obligations on the parties. Section 36 provides:

36 Guiding principle to be applied to practice and procedure

(1) The "guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The Tribunal must seek to give effect to the guiding principle when it:

(a) exercises any power given to it by this Act or the procedural rules, or

(b) interprets any provision of this Act or the procedural rules.

(3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal:

(a) a party to proceedings in the Tribunal,

(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.

(4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.

(5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.

7. The power to award costs is contained in section 60 of the NCAT Act. The general rule in the Tribunal is that each party pay its own costs. However, the Tribunal may order a party to pay costs if satisfied that there are special circumstances warranting such an order. Section 60 of the NCAT Act provides:

60 Costs

(1) Each party to proceedings in the Tribunal is to pay the party’s own costs.

(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to 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) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36 (3),

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

(4) If costs are to be awarded by the Tribunal, 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 the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014 ) or on any other basis.

(5) In this section:

"costs" includes:

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

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

…

8. To warrant and award of costs there must be circumstances which are out of the ordinary but not necessarily extraordinary or exceptional: see Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at paragraph [11]; Bischoff v Sahade & Owners Corporation SP 62022 [2015] NSWCATAP 196 at paragraph [24].

9. Even if some factors under section 60(3) are established, it does not necessarily follow that a costs order should be made. It is still necessary for the Tribunal to weigh whether those circumstances are sufficient to amount to 'special' circumstances that justify departing from the ordinary rule that each party bear their own costs: Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at paragraph [81].

10. The discretion to award costs must be exercised judicially having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs: eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at paragraphs [37] and [48]; Nguyen & Anor v Perpetual Trustee Company Ltd; Perpetual Trustee Company Ltd v Nguyen & Anor (no 2) [2016] NSWCATAP 168 at paragraph [16].

The OEH’s submissions

11. The OEH contends that there are 'special circumstances' warranting an award of costs. It submits that subparagraphs (b), (c), (e), (f) and (g) of section 60(3) are relevant in these proceedings.

12. In respect of section 60(3)(b) and (c), the OEH notes that the Applicant failed to attend a case conference or to provide any response to the notice of decision. As a consequence, the matter was listed for dismissal.

13. The Applicant’s agent attended the Dismissal Hearing and the matter re-instated. He also filed documents at the same time. However the OEH says that the Applicant’s material did not clarify what issues were being pressed in respect of his application.

14. In respect of section 60(3)(e) the OEH submits that the Applicant’s material lacked substance, as it was unable to identify any relevant issues.

15. It is the OEH’s submission that the Applicant did not comply with the orders made by the Tribunal on 26 April 2016 and 5 July 2016 and that this failure is contrary to the requirements of section 36(3) of the NCAT Act that each party participate in the processes and comply with directions and orders of the Tribunal.

16. The OEH contends that it has been unfairly disadvantaged because the Applicant’s failure to attend a case conference or to correspond with the OEH removed any opportunity for it to ascertain the nature of the dispute. Further, the Applicant did not comply with the timetable that was set on 5 July 2016 and as a result a listed hearing was vacated.

17. The OEH also contends that the Applicant continued to prolong the proceedings by adding additional material after the determination of the substantive matter but that the additional material that he filed failed to address the issue of costs.

18. The OEH seeks costs to cover the time required to attend the Tribunal because of the Applicant's failure to comply with directions or to communicate his intentions and the costs involved in preparing submissions in respect of the application. It estimated that this total cost would equate to a total of $1,000.

The Applicant’s submissions

19. The Applicant filed material after the hearing and determination of the matter. However, the material that he filed appears to be related to the substantive matter and to some extent it takes issue with my decision. It is not clear why he has filed this material. I note that the Applicant indicated his intention to lodge an appeal against my decision. It may be that the material filed is in relation to an appeal. However, it does not address the issue of costs and I do not propose to take it into account.

20. The Applicant requested that no decision be made on the issue of costs until he had time to consider his position in regard to an appeal. However, he has failed to provide any indication of whether he is pursuing an appeal or to file any material in regard to the issue of costs.

Discussion

21. The fundamental rationale for the awarding of costs is that such an award is compensatory, not punitive: Latoudis v Casey (1990) 170 CLR 534 at 543; Oshlack v Richmond River Council (1998) 193 CLR 72 at 97.

22. I am satisfied that the Applicant conducted the proceedings in a way that unnecessarily disadvantaged the OEH. He failed to attend a case conference held on 21 June 2016 and failed to keep the OEH informed of his intentions in regard to his prosecution of the matter. Had the Applicant attended the planning meeting, this would have allowed the OEH to explain its position and allowed an opportunity to resolve the matter without the need to incur further unnecessary expense.

23. As noted above, the matter was listed for dismissal and the Applicant opposed that dismissal. At his request the matter remained before the Tribunal and a timetable was set for the matter to be heard and determined. He did not comply with that timetable and as a result the hearing was vacated and rescheduled.

24. The Applicant’s application was narrowed significantly from the initial access application - he agreed that records held by the Jenolan Caves Reserve Trust are excluded. Nevertheless, he pursued his case in a way that failed to take account of the narrowed scope of the request. In that regard I am satisfied that the claim was misconceived and inevitably that aspect of the application was unsuccessful.

25. In these circumstances I am satisfied that there are special circumstances warranting an order of costs.

26. The Applicant commenced proceedings but failed to take adequate steps to prosecute the proceedings. He failed to appear at a planning meeting, or to seek an adjournment of that planning meeting. The planning meeting would have provided an opportunity for the parties to discuss the issues in dispute and to narrow the scope of the application. The Applicant also failed to comply with the timetable set to prepare the matter for hearing.

27. I am satisfied that the OEH was put to expense that it would not have otherwise incurred had the Applicant met his obligations as a party to the proceedings.

28. I am also satisfied that the proceedings were misconceived and the Applicant conducted the proceedings in a way that disadvantaged the OEH. In the circumstance there are special circumstances warranting an award of costs, to compensate the OEH for the expenses that it has.

29. In my view, the Applicant’s failure to provide additional material following the dismissal hearing in July 2016 meant that the ultimate outcome of the proceedings was inevitable. I am satisfied that the OEH should not have been put to the expense of responding to the application from that time.

30. I note that the OEH has requested an amount of $1,000 in costs. It has not provided evidence in support of that claim or to show how those costs were calculated but in the circumstances it does not appear to be excessive. Nevertheless, it is appropriate that the Applicant be provided some material to substantiate the OEH’s claim.

31. In my view, the appropriate order is that the Applicant is to pay the OEH’s costs of the proceedings from the time of the dismissal hearing on 5 July 2016, in an amount not exceeding $1,000, as agreed or assessed.

Order

1. The Applicant is to pay the Respondent’s costs of the proceedings from 5 July 2016, in an amount not exceeding $1,000, as agreed or assessed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 17 July 2017