Webb v Port Stephens Council

[2023] NSWCATAD 137

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Webb v Port Stephens Council [2023] NSWCATAD 137

Hearing dates:

On the papers

Date of orders:

6 June 2023

Decision date:

06 June 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Levine, Senior Member

Decision:

(1) An oral hearing on the issue of costs is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

(2) Pursuant to section 60(2) of the Civil and Administrative Tribunal Act 2013 (NSW), the Applicant, Ms Telina Webb, is ordered to pay the Respondent, the Port Stephens Council, costs in the amount of $7,000.00 within 28 days of this order being made.

(3) Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure of the material filed by the Respondent on a confidential basis is prohibited. That material is not to be released to either the Applicant or the public.

Catchwords:

COSTS – Section 60(2) of the Civil and Administrative Tribunal Act 2013 (NSW) – whether special circumstances established – whether all factors listed in section 60(3) must be satisfied or whether it is a non-exhaustive list of considerations – whether there was unreasonable incurrence of costs – whether there was a failure to comply with the duty under section 36 of Civil and Administrative Tribunal Act 2013 (NSW) – whether an award of fixed costs is appropriate and if so in what amount

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Cases Cited:

203 Castlereagh Street Pty Limited v Skybloo Limited [2017[ NSWCATAP 29

Alexander James Pty Ltd v Pozetu Pty Ltd (No. 2) [2016] NSWCATAP75

Bechara (t/as Bechara and Co) v Bates [2016] NSWCA 294

Bilic v Commissioner of Police [2022] NSWCATAD 93

Commissioner of Police v Robinson (No. 2) [2022] NSWCATAP 280

Cripps v G&M Mawson [2006] NSWCA 84

Grasso v Owners of Strata Plan No 52399 NSWCATAP 91

Hamod v State of New South Wales [2002] FCA 424

McEwan v Port Stephens Council (No. 2) [2022] NSWCATAP 386

McEwan v Port Stephens Council (No. 2) [2022] NSWCATAD 308

Oshlak v Richmond River Council [1998] HCA 11

Webb v Port Stephens Council [2023] NSWCATAP 133

Webb v Port Stephens Council [2022] NSWCATAD 404

Wojciechowska v Commissioner of Police, NSW Police Force (No 2) [2023] NSWCATAP 104

Texts Cited:

None

Category:

Costs

Parties:

Telina Webb (Applicant)
Port Stephens Council (Respondent)
Crown Solicitor (Interested Party)

Representation:

Solicitors:
Applicant (Self-represented)
Lindsay Taylor Lawyers (Respondent)
Crown Solicitor (Interested Party)

File Number(s):

2022/00138219

Publication restriction:

Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure of the material filed by the Respondent on a confidential basis is prohibited. That material is not to be released to either the Applicant or the public.

REASONS FOR DECISION

Introduction

1. Telina Webb (“Ms Webb” or “Applicant”) applied to the New South Wales Civil and Administrative Tribunal (“Tribunal” or “NCAT”) for administrative review of a decision made on 6 January 2022 by the Port Stephens Council (“Council” or “Respondent”) under the Government Information (Public Access) Act 2009 (“GIPA Act”) refusing her access to some of the information she had requested on 17 November 2021 (“Access Application”).

2. The Access Application was for documents connected with GIPA Act training sessions provided to Council staff by the Crown Solicitor’s Office (“CSO”). The Council identified 40 responsive documents, and decided to provide full access to some, partial access to others, and view-only access to one. Ms Webb did not agree with the bases for the Council’s decisions. She unsuccessfully sought external review through the Information Privacy Commission (“IPC”) and then requested this Tribunal to review the Council’s decisions. The Council submitted that its decisions should be affirmed, as did the CSO, which was joined as an interested party. After conducting a hearing on 31 October 2022, and for the reasons published on 20 December 2022, this Tribunal dismissed Ms Webb’s application and affirmed the Council’s decisions (Webb v Port Stephens Council [2022] NSWCATAD 404) (“Webb 1”)). On 17 May 2023, the Appeal Panel dismissed an appeal from the Tribunal’s decision (Webb v Port Stephens Council [2023] NSWCATAP 133) (“Webb Appeal”).

3. On 16 January 2023, the Council applied for costs pursuant to section 60(2) of the Civil and Administrative Tribunal Act 2013 (“CAT Act”). The Council filed submissions on 27 January 2023, seeking a fixed sum of $10,000.00 to be paid within 28 days of the order being made (“Costs Application”). Ms Webb opposed the Costs Application, on the basis that the Council had “completely failed to make out any degree of special circumstances warranting any award for costs under the circumstances.”

4. In this decision, for the reasons set out below, the Tribunal finds that an oral hearing on costs may be dispensed with under section 50(2) of the CAT Act. The Tribunal also addresses a purported stay application lodged by the Ms Webb. The Tribunal then finds that the Council has established “special circumstances” for purposes of section 60(2) of the CAT Act, primarily because Ms Webb unreasonably caused the Respondent to incur costs and because she failed to comply with her duty under section 36 of the CAT Act (see sections 60(3)(f) and (g)). The Tribunal considers an order for costs in a fixed amount to be appropriate and orders Ms Webb to pay the Council the amount of seven thousand dollars ($7,000.00) within 28 days.

Procedural Background

The Access Application, Council’s Decisions and IPC Review

5. Ms Webb’s Access Application of 17 November 2021 was for six categories of documents relating to training sessions received by Council staff on the GIPA Act. Details of the Access Application are set out in paragraph 6 of Webb 1 and not repeated here.

6. On 6 January 2022, the Council issued its decisions on the Access Application. The Council noted that because the Applicant had requested business information of another agency, it had consulted with the CSO under section 54 of the GIPA Act. The Council’s decisions are detailed at paragraphs 7 to 9 of Webb 1. In short, the Council identified 40 responsive documents. The Council provided Ms Webb with many of those documents, either in their entirety (Documents 1, 2, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 23, 24, 25, 28, 33, 39, 40) or with some portions redacted (Documents 3, 4, 5, 6, 21, 22, 26, 27, 29, 30, 31, 32). One of the documents, Document 38, was produced on an inspection-only basis. The Council refused access to four of the documents (Documents 34, 35, 36 and 37) on the basis of considerations set out in clauses 4(a) and (c) of the Table to section 14 of the GIPA Act, noting that the CSO had objected to disclosure. However, even for those four documents, the index and title page of the training materials and workbook were disclosed to Ms Webb.

7. As noted in paragraphs 10 to 15 of Webb 1 , Ms Webb applied to the IPC for review of the Council’s decisions, but that application was unsuccessful.

Review Proceedings Before this Tribunal at First Instance

8. Ms Webb then applied, on 13 May 2022, to this Tribunal for review of the Council’s decisions. As noted at paragraph 16 of Webb 1, in her application form for administrative review, Ms Webb stated as her reasons for review simply that she did “not agree with the agency’s decision and consider[ed] the bases of refusal of access misconceived.”

9. On 27 June 2022, Senior Member Montgomery issued the following orders and/or directions of the Tribunal in proceedings for Webb 1:

1. On or before 25 July 2022 Port Stephens Council is to give to the Tribunal and Telina Webb the following material: evidence including statements, documents and submissions.

2. On or before 22 August 2022 Telina Webb is to give to the Tribunal and Port Stephens Councils the following material: evidence including statements, documents and submissions.

3. On or before 29 August 2022 Port Stephens Council is to give to the Tribunal and Telina Webb the following material: all evidence in reply, submissions and a summary of legal arguments.

4. A hearing on the application is dispensed with, and the application will be determined on the papers.

5. On or before 22 August 2022 Telina Webb may apply to have the matter listed for hearing should the need arise.

Notes: Ms Webb is to consider the Respondent’s material and ascertain whether she requires any witnesses for cross-examination.

10. On 26 July 2022, the Tribunal recorded that the CSO sought to appear and be heard in the proceedings, and that both Parties had consented. On the same date, the Tribunal made the following orders and/or directions, which were also made with the consent of the Parties:

1. The Crown Solicitor is to file and serve its evidence submission by 1 August 2022.

2. Order 1 made by the Tribunal on 27 June 2022 for the Council to file its evidence and submissions is extended to 8 August 2022.

3. Order 2 for the application to file and serve evidence and submission by 22 August 2022 is affirmed.

4. Order 3 made on 27 June 2022 for the respondent to provide material in reply by 29 August 2022 is affirmed.

5. The parties are to advise the Tribunal and each other by 29 August 2022 whether a hearing can be dispensed with and a decision will be made in that regard in due course.

Note: The Crown Solicitor seeks to appear and be heard in the proceedings. The parties consent and have consented to the amended timetable.

11. On 9 August 2022, the Council filed its submissions and materials pursuant to order 2 of the above orders.

12. On 18 August 2022, Ms Webb made an application for miscellaneous matters seeking orders that a hearing be set by the Tribunal for this matter.

13. Although it was agreed by the parties and twice-ordered by the Tribunal for Ms Webb to file and serve evidence and submissions by 22 August 2022, she did not do so. Rather, on 26 August 2022, Ms Webb filed “Submissions in Reply” in which she stated:

1. The Tribunal has allowed the Applicant the right of reply to Submissions and Evidence of both the Respondent and the singular formal objector to the release of the requested information the subject of these proceedings.

2. The Applicant respectfully relies on the NCAT Hearing of Choi v NSW Ombudsman before SM Riordan on 06th June 2022 where the SM made clear the Tribunal may consider additional Submissions outside of its Directions.

3. As such, this document refers to the Applicant’s submissions.

4. By email received from the Respondent’s solicitor on 25th August 2022, the Respondent appears to express concerns that the aforementioned right of reply had not been exercised by the Applicant by the date indicated by the Tribunal, that is by Monday 22nd August 2022.

5. In this regard the Applicant respectfully advises the Tribunal Submissions are reserved for closing comments at the Hearing on f this matter, a date and time which is yet to be fixed.

6. The Applicant further confirms the requirement for the Crown Solicitor’s representative Ms Kirri Mattes to make herself available for cross-examination of her Sworn Affidavit dated 01st August 2022, provided in relation to this matter, at that hearing of which a date and time is yet to be fixed.

14. On 29 August 2022, the Council and the CSO expressed the view that a hearing could be dispensed with pursuant to section 50(2) of the CAT Act. On 30 August 2022, Ms Webb, however, maintained that a hearing be held so that she might cross-examine the witness from the CSO. Ms Webb also sent an email objecting to a line of the letter from the Council’s lawyers that stated “if you would like to discuss this matter further, please contact Jennifer Chenhall [Special Counsel]”. Ms Webb accused the Council’s lawyers of making a “deliberate attempt to take an advantage of an unrepresented party” and sent them a copy of the Port Stephens Code of Conduct.

15. The matter was listed for directions and on 6 September 2022, the Tribunal listed the matter for hearing by audio-visual link on 31 October 2022. The Tribunal also noted that:

Ms Webb advises that she is not submitting any further evidence in response to the Tribunal’s directions made on 27 June 2022. She wishes to make oral submissions at the hearing.

16. Accordingly, no submissions or evidence were filed by Ms Webb in advance of the hearing.

17. At the hearing itself, as noted in paragraph 29 of Webb 1, although Ms Webb “did not file written submissions in advance of the hearing, she made reference to notes in her closing submissions and agreed to share her notes with the Tribunal, the Respondent and the CSO”.

18. Also at the hearing, as recorded in paragraphs 53 to 56 of Webb 1, Ms Webb stated that she was only pressing review of the Council’s Decision with respect to Documents 34 to 38. Up until that point, it was not clear whether or not Ms Webb was challenging the Council’s Decisions with respect to the other documents which had not already been fully disclosed to her (namely Documents 3, 4, 5, 6, 29, 30, 31 and 32, which had been partially redacted due to material being outside the scope of the Access Application; and Documents 21, 22, 26 and 27, which had been partially redacted due to having signatures redacted to protect personal information).

19. On 22 December 2022, the Tribunal found the correct and preferable decision was to affirm the Council’s decisions and dismiss Ms Webb’s Application.

The Costs Application, Ms Webb’s Miscellaneous Applications and the Appeal

20. As noted in the introduction to this decision, on 16 January 2023, by letter to the Tribunal, the Respondent applied for the costs of Ms Webb’s application to this Tribunal for administrative review.

21. The Tribunal ordered as follows on 23 January 2023:

(1) The Respondent must provide to the Tribunal and the applicant any written submissions and documents, which the respondent intends to rely on in relation to the costs application, on or before 27 January 2023;

(2) The applicant must provide to the Tribunal and the respondent any written submissions and documents, which the applicant intends to rely on in response to the costs application, on or before 10 February 2023.

(3) The respondent is to provide to the Tribunal and the applicant any further written submissions and documents, which the respondent intends to rely on in reply, on or before 17 February 2023.

(4) Parties are to address in their written submissions whether an order should be made dispensing with a hearing under s 50(2) of the Civil and Administrative Tribunal Act 2013. A decision will be made in that regard in due course.

22. In accordance with the Tribunal’s orders, the Council filed its submissions and supporting documentation for its Costs Application on 27 January 2023.

23. In January 2023, Ms Webb filed an appeal against the decision in Webb 1, listing 16 grounds of appeal in her Notice of Appeal (Webb Appeal [17]).

24. Ms Webb did not file written submissions and documents in reply to the Council’s submissions by 10 February 2023 as ordered by the Tribunal. Instead, on 10 February 2023, she filed an application to stay the proceedings on the Costs Application. She recalled that she is neither legally represented or legally qualified. She stated that she expected the Tribunal to “thoroughly answer the question of whether it agrees with the Respondent that the Applicant should be punished for exercising her rights of an administrative review of agency decision before the Tribunal, in the form of costs” and that in order for the Tribunal to do so, it must provide her with “good time” to prepare her submissions. She therefore asked the Tribunal to stay the Costs Application proceedings until the Appeal was heard and determined. She noted that the granting of the stay would not be prejudicial to the Respondent in relation to the Costs Application, but the outcome of the Appeal could be relevant to whether or not the Costs Application should proceed further. She cited several decisions where the Tribunal had considered a stay as non-controversial and submitted that the application to stay proceedings was reasonable and a “better use of the Tribunal’s and the parties’ time and resources at this point in time.”

25. On 10 February 2023, Principal Member Simon directed Ms Webb to provide any further written submissions on the stay application by 17 February 2023, and the Council to provide any written submissions and documents in reply concerning the stay application by 24 February 23, and directed both Parties to address whether a hearing (on the stay) could be dispensed with under section 50(2) of the CAT Act.

26. On 18 February 2023, Ms Webb filed her comments on the stay of proceedings, apologising for missing the deadline by one day, “due to the size of her current workload and the limited time imposed by the Tribunal” and noting the Tribunal’s discretion to consider submissions made outside of directions. She opted to rely on her application and made no further comments. She agreed that there was no need for a hearing on the stay application.

27. On 17 March 2023, Principal Member Simon made the following orders and/or directions, accompanied by reasons (which are not repeated here):

1. A hearing in relation to the stay application is dispensed with pursuant to s 50(1)(c) of the Civil and Administrative Tribunal Act 2013.

2. The application for a stay of the proceedings is refused.

3. Order 2 made by the Tribunal on 23 January 2023, for the applicant to provide the submissions and documents she intends to rely on in relation to costs is extended to 31 March 2023.

4. Order 3 made by the Tribunal on 23 January 2023, for the respondent to provide any further written submissions and documents it intends to rely on in reply is extended to 14 April 2023.

28. On 31 March 2023, Ms Webb filed 303-pages, comprised of a 27-page submission and over 30 new documents. Her submission included allegations about personnel of the Council (including a Mr Tony Wickham, who was not the decision-maker on the Access Application in this matter). It then set out as background to the costs application, “personal factors to the application” and “background to substantive hearing.” The personal factors included some background to “administrative events” between Ms Webb, her husband and the Council. She then noted, as an “amendment to parameters of substantive matter” that Document No. 38 had “since become obsolete”, as Ms Webb had obtained that document via the IPC. The third part of her submission was a list of over 30 new documents attached to the submissions. In the fourth part of her submission, she addressed section 60 of the CAT Act on costs. She also set out various new allegations about the Council’s relationship with the CSO and accused the Council and the CSO of having “misrepresented the facts to the Tribunal during the substantive hearing.” Her submissions relevant to the Costs Application itself are detailed further in a subsequent part of this Decision.

29. On 14 April 2023, the Council filed its Submissions in Reply on Costs.

30. On 19 April 2023, Ms Webb filed a miscellaneous application to allow her to make further written submissions and to have the Council’s Costs Application heard (“19 April 2023 Miscellaneous Application”). She provided the following grounds for her application:

The Applicant has sought Counsel in relation to the Tribunal’s Orders dated 17 March 2023.

That Counsel agrees there are a number of statements within the Respondent’s Submissions of 14^th April 2023 which are undoubtedly categorised as defamatory and are also statements which contradict the facts.

Tribunal Member Simon’s Orders of 17^th March 2023 are confirmed to have omitted to provide the Applicant her procedurally fair opportunity to file Submissions in Reply to those of the Respondent, at Order No. 4.

In this regard, and Order No. 5 should be afforded to the Applicant.

And a further date nominated for the Hearing of the Costs Application was also omitted.

The Applicant seeks a date for filing of Submissions in Reply of seven business dates from today, bringing that date to 28^th April 2023, allowing for the Anzac Day Public Holiday.

The Applicant thereafter appreciates the Registry nominating a date for the Hearing on the Application for Costs.

31. On 25 April 2023, Ms Webb sent an email to the Tribunal seeking to “amend the parameters of” the 19 April 2023 Miscellaneous Application, noting her interstate travel. She requested that she instead file further submissions in reply by 5 May 2023.

32. On 27 April 2023, the Council sent an email to the Tribunal opposing Ms Webb’s 19 April 2023 Miscellaneous Application. The Council observed that the 303 pages filed by Ms Webb already were largely irrelevant to the Costs Application and she should not be given a further opportunity to file more voluminous and irrelevant material. The Council stated that in the event the Tribunal were against the Council on that point, then the Tribunal should require Ms Webb’s reply to be no more than five pages, and that the Council should be afforded a right of further reply of no more than five pages and that those be the final directions for the filing and service of evidence in the costs application. The Council also opposed the request to have the Costs Application heard.

33. On 3 May 2023, the following orders of the Tribunal determining the 19 April 2023 Miscellaneous Application were sent to the Parties:

1. The Applicant to file, by 5 May 2023, a further response, limited to 5 pages and issues relevant to the Respondent’s costs application only.

2. The Respondent to file, by 12 May 2023, a final submission in reply, also limited to 5-pages.

3. Costs to be determined on the papers.

34. Ms Webb, however, had pre-empted these orders by emailing her further submissions to the Tribunal and the Council at 4:52PM on 2 May 2023, before the above orders were formally issued. Those submissions were 14 pages (97 paragraphs) in length and Ms Webb noted that “I am unable to see any prejudice to Port Stephens Council with the Tribunal’s affording procedural fairness in this matter concerning the enclosed document.”

35. On 4 May 2023, the Council sent an email to the Tribunal opposing the filing of Ms Webb’s submissions, noting that she filed them before the Tribunal had the opportunity to determine the Applicant’s 19 April 2023 Miscellaneous Application, i.e. without orders. The Council observed that the submissions went beyond the 5-page limit and dealt with matters irrelevant to costs.

36. On 8 May 2023, the Council filed its “Final Submissions of the Respondent on Costs”, again noting Ms Webb’s failure to comply with the Tribunal’s orders and failure to limit her submissions in length or subject matter. The Council stated that it “will not dignify the Applicant’s non-compliant submissions with a response.”

37. Also on 8 May 2023, Ms Webb, in an effort to meet the Tribunal’s orders of 3May 2023, enclosed submissions which were five pages in total. These were effectively a condensed (smaller font) version of the 97 paragraphs that were provided on 28 April 2023.

38. Ms Webb separately filed on 8 May 2023 an application for a stay or interim order requesting written reasons for the orders dated 3 May 2023.

39. On 17 May 2023, the Appeal Panel issued its decision, refusing leave to appeal and dismissing the appeal on all grounds.

Issues to be Determined

40. In this decision the Tribunal deals with three main issues.

41. The first is whether a hearing may be dispensed with under section 50 of the CAT Act.

42. The second is the disposition of Ms Webb’s stay application of 8 May 2023.

43. The third is whether to grant the Council’s Costs Application.

44. The Tribunal sets out the relevant legislation, the Parties’ positions and the Tribunal’s reasons on each of these issues below.

First Issue: Dispensing with a Hearing

Relevant Legislation

45. Section 50 of the CAT Act provides:

50   When hearings are required

(1)  A hearing is required for proceedings in the Tribunal except—

(a)  in proceedings for the granting of leave for an external or internal appeal, or

(b)  in connection with the use of any resolution processes in proceedings, or

(c)  if the Tribunal makes an order under this section dispensing with a hearing, or

(d)  in such other circumstances as may be prescribed by the procedural rules.

(2)  The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

(3)  The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first—

(a)  afforded the parties an opportunity to make submissions about the proposed order, and

(b)  taken any such submissions into account.

(4)  The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

The Council’s Position

46. The Council did not consider that a hearing is required to determine the Costs Application. It submitted the arguments and evidence are sufficiently presented in its written submissions and supporting documentation, and that accordingly the matter could and should be determined on the papers in accordance with section 50 of the CAT Act.

47. In its Reply Submissions on costs the Respondent maintained that “there would be no benefit to the Tribunal in having the matter heard” and reiterated its submissions that the costs application can be dealt with on the papers.

48. Finally, in its email to the Tribunal of 27 April 2023, the Council maintained its opposition to the request to have the Costs Application heard:

The Council considers it has presented its case adequately to the Tribunal, and given the 303 pages filed by the Applicant, the Council considers that the Applicant has had an adequate opportunity to present her case as well. The Tribunal would be further satisfied that a hearing is unnecessary if it allows the parties further opportunities to file and serve evidence (contrary to the Council’s submission).

The Council submits that the matter should proceed according to the current procedural directions and be determined on the papers.

Ms Webb’s Position

49. Ms Webb did not make any statement on the need for a hearing in her 303-page submissions of 31 March 2023.

50. In the 19 April 2023 Miscellaneous Application, Ms Webb stated that she would appreciate the “Registry nominating a date for the Hearing on the Application for Costs.”

51. Ms Webb stated at paragraph 97 of her submissions of 28 April 2023 and 8 May 2023 that:

The Applicant seeks a Virtual Hearing on the Application for Costs, at a time to be set down by the Registry, where the Respondent will be expected to make itself available for cross-examination.

The Tribunal’s Consideration and Materials Considered

52. In relation to the Costs Application, the Tribunal has had regard to the following material provided by the parties, in addition to the original file for Ms Webb’s application for administrative review (the contents of which were detailed at paragraphs 22 to 29 of Webb1).

53. The material from the Council, as applicant for costs, comprised:

1. Letter of 16 January 2023 stating that it was applying for costs;

2. Submissions dated 27 January 2023, attaching in support of the Costs Application:

1. Affidavit of Lachlan Penninkilampi of 27 January 2023;

2. Fee ledger as Annexure A to the Affidavit;

3. Guideline of costs assessors’ fees in Supreme Court, as Annexure B to the Affidavit;

3. Final submissions dated 8 May 2023.

54. The material from Ms Webb, as respondent to the Costs Application, comprised:

1. Submissions of 10 February 2023 (bearing date 9 February 2023) in support of a stay application;

2. Submissions in reply to Council’s submissions, dated 31 March 2023, comprising 303-pages of materials, including 27 pages of narrative submissions and 30 new documents;

3. Further Submissions in reply to Council’s submissions, 14-pages in length, filed on 28 April 2023 before Tribunal had directed these were allowed;

4. Submissions of 8 May 2023, 5 pages in length, in accordance with the Tribunal’s orders of 3 May 2023, and accompanied by 1-page stay application.

55. As provided in section 50(2) of the CAT Act, the Tribunal “may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.”

56. As detailed above, the Tribunal has provided the Parties with the opportunity to file written submissions and other documents on the Costs Application. Indeed, the Tribunal has granted Ms Webb’s request to make an additional round of submissions beyond that originally granted by the Tribunal. In these circumstances, the Tribunal is satisfied that the issues for determination can be adequately determined without an oral hearing, by considering the submissions and other documents provided to the Tribunal.

57. The Tribunal has also afforded the parties several opportunities to make submissions about the proposed order to dispense with an oral hearing, for example in Order No. 4 of the Tribunal’s orders of 23 January 2023.

58. The Tribunal has taken both Parties’ submissions (summarised above) into account with regard to the need for a hearing.

59. The Tribunal has before it voluminous written materials relevant to costs, including both Parties’ positions on the meaning of section 60 of the CAT Act and its application in the circumstances of the present case. Ms Webb has provided no reason for a hearing to be held, beyond stating “the Respondent will be expected to make itself available for cross-examination,” without specifying any employee or representative of the Respondent or the subject of cross-examination. The Tribunal notes that the short affidavit of Mr Penninkilampi serves the purpose of attaching the fee ledger of the Respondent’s counsel, and an extract from a publicly available website disclosing current fees of costs assessment. The Parties had the opportunity to address those two documents in their submissions, and the Tribunal is able to make the determinations below without the need for a hearing. The Tribunal is of the view that a hearing would cause the Parties to incur further unnecessary costs. Accordingly, the Tribunal has decided that it is appropriate to deal with the Costs Application on the papers.

60. The above constitute the reasons for the Tribunal’s order number 3 issued on 3 May 2023.

Second Issue: Ms Webb’s Application of 8 May 2023

61. When Ms Webb filed the 5-page version of her further costs submissions in reply on 8 May 2023, her cover letter also noted that:

Secondly, this letter formally requests the Senior Member to provide her written reasons for her Orders of 03^rd May 2023, in accordance with the legislation.

Thirdly, I enclose a formal Stay of Proceedings Application Form for the purposes of ensuring no decision is made on the Costs Application until the written reasons have been made available with the time allowed for due consideration of same.

62. The Application for stay filed on 8 May 2023 provided as grounds for the application:

I seek the written reasons for the Tribunal’s Decision on my Miscellaneous Application of 19^th April 2023. I have received the Tribunal’s Orders resulting from the Application. Orders dated 03^rd May 2023, but have not been provided any reasons. I have today formally requested those reasons under separate letter.

63. Section 62 of the CAT Act provides as follows:

62   Tribunal to give notice of decision and provide written reasons on request

(1)  The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings.

(2)  Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made.

(3)  A written statement of reasons for the purposes of this section must set out the following—

(a)  the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b)  the Tribunal’s understanding of the applicable law,

(c)  the reasoning processes that lead the Tribunal to the conclusions it made.

(4)  Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party.

64. Ms Webb did not specify for which of the Tribunal’s orders of 3 May 2023 she is seeking reasons. Presumably it is not the decision in paragraphs (1) and (2) to grant Ms Webb’s request to make further submissions in reply to the Council’s submissions; and to grant the Council’s request to make a final submission in reply, with page limits. To the extent she is seeking reasons for those orders, the Tribunal refers to sections 36 and 38 of the CAT Act:

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.

…

38   Procedure of Tribunal generally

(1)  The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.

(2)  The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

65. In allowing Ms Webb to make a further submission in reply to the Council’s Submissions of 14 April 2023, the Tribunal considered the need to “facilitate the just, quick and cheap resolution of the real issues in the proceedings”. The real issue in the proceeding being the Costs Application, this was an opportunity to focus her submissions on points relevant to costs, in a concise manner that would not generate further costs disproportionate to the issues in question. The Tribunal in making its second order, took into account that the costs application in question was the Respondent’s application and that the Respondent should therefore have the opportunity to respond if it so chose. By emails dated 19, 25, and 27 April 2023, the Parties had taken the opportunity to comment on these procedural measures.

66. As for the third of the Tribunal’s orders issued on 3 May 2023, namely the decision to determine the Costs Application on the papers, the Tribunal has set out the relevant principles, the Parties’ positions, and the Tribunal’s reasons, in paragraphs 45 to 60 above.

67. In view of the above, the Tribunal considers that no further orders are necessary with respect to Ms Webb’s application of 8 May 2023.

Third Issue: Whether Costs should be Awarded and in What Form and Amount

68. The Tribunal now turns to the Respondent’s Costs Application.

Relevant Legislation

69. Section 60 of the CAT 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.

70. For purposes of section 60(3)(f), the relevant provision of section 36 of the CAT Act is as follows:

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.

…

(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.

The Council’s Position

71. The Council has sought an order under section 60(2) of the CAT Act that Ms Webb pay the Council’s costs of the Review Application in the fixed sum of $10,000.00.

72. The Council noted that the matters set out in section 60(3) are not exhaustive. It cites the Appeal Panel’s decision in Grasso v Owners of Strata Plan No. 52399 [2022] NSWCATAP 91 (“Grasso”) at [12] for the following established principles concerning an award of costs in special circumstances (internal citations omitted):

1. An application for costs can only succeed before the Tribunal if it can be shown that “the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional”…;

2. “An assessment whether circumstances are “special” involves the exercise of a value judgement carried out by way of comparison between what is not “special”, and what is special.”;…

…

4. the power to award costs is a discretionary power vested in the decision maker…

5. the exercise the discretion requires a tribunal “to weigh whether those circumstances are sufficient to amount to “special circumstances” that justify departing from the general rule that each party bear its own costs…;

6. an order for costs is intended to compensate the successful party: it is not intended to be punitive in nature…; and

7. the discretion to award costs is to be exercised judicially….

73. The Council submitted there are two broad reasons why the Tribunal should be satisfied that special circumstances warrant an award of costs in this case.

74. First, the Council submitted that Ms Webb unreasonably caused it to incur costs by abandoning her claim once the substantive hearing on the matter had commenced with respect to all except five of the 40 documents identified by the Respondent as being responsive to her access application (citing Webb 1 [53]). This, according to the Council, resulted in a significant proportion of its costs in responding to the application and preparing for the hearing being incurred unnecessarily. The Council had outlined arguments in its submissions about why Ms Webb was properly denied access to certain parts of documents that were outside of the scope of her application, or contained personal information (like signatures) the disclosure of which would serve no public purpose. Ms Webb was aware from the Respondent’s submissions of the issues and had sufficient opportunity to consider her claim. The Respondent observed that she did not do so until the day of hearing. As such, the Respondent stated that Ms Webb “could have notified the Respondent about her decision to abandon most of her claim at the earliest possible opportunity. However, the Applicant chose not to do so.” This, the Respondent submitted, constitutes a special circumstance under section 60(3)(g).

75. Secondly, the Respondent argued that the Applicant failed to comply with the duty imposed on her by section 36(3)(a) of the CAT Act by failing to file submissions and evidence in accordance with a procedural direction of the Tribunal. The Respondent noted that by order 2 of the orders made by Senior Member Montgomery of 27 June 2022, Ms Webb was required to give to the Tribunal and the Council her evidence including statements, documents and submissions by 22 August 2022. But on 26 August 2022, Ms Webb served a 6‑paragraph document titled “OUTLINE of SUBMISSIONS in REPLY” which was not directed to the substantive matter and did not assist in advancing the matter. She advised that “Submissions are reserved for closing comments at the Hearing of this matter, a date and time which is yet to be fixed.” According to the Council, Ms Webb’s failure to file material constitutes further special circumstances warranting an award of costs: “She had the opportunity to notify the Tribunal and Respondent that she intended to abandon seven-eighths of her claim at the hearing. Yet, Ms Webb chose not to take that opportunity”. The Council stated:

One of the main reasons why the Tribunal requires administrative review applicants to file material in advance of a substantive hearing, is to encourage them to think more critically about their application. This includes whether the claim should be modified or abandoned in part or in whole.

…

76. The Council concluded that as a result of Ms Webb’s failure to comply with the Tribunal’s order and file evidence or submissions, the Council had “no reasonable alternative but to incur costs in preparing to provide a response to the Applicant’s claim in respect of the 40 documents. All the Respondent knew about the Applicant’s claim, was what she stated in her administrative review application dated 12 May 2022, namely that she did not agree with the Respondent’s decision and considered the bases of refusal of access to be misconceived.”

77. As for the amount of costs, the Council provided an affidavit of Mr Lachlan Penninkilampi showing the costs in the proceedings up until 12 January 2023, which total $20,914.85 including GST. The affidavit attached a ledger showing the Council’s legal team spent on the matter. The Council pointed out that work was undertaken by junior or mid-level solicitors rather than a partner where that work could occur, and emphasises that the Council did not engage counsel. The Council claimed its submissions and evidence were as concise as was reasonably possible, considering the number of documents still in issue, and they addressed the real issues in dispute. The Council submitted that its time in preparing for, appearing at, and reporting on interlocutory and substantive hearings of the application, and subsequently reviewing and reporting on the decision was “short and reasonable.”

78. The Council thus has sought a fixed costs order for $10,000.00, being approximately half of the costs actually incurred and excluding the costs of bringing the costs application, to be paid within 28 days of the order being made.

79. The Council referred to the case of 203 Castlereagh Street Pty Limited v Skybloo Limited [2017] NSWCATAP 29 (“203 Castlereagh”) at [40] for the following principles relevant to the making of a gross sum or fixed sum costs order (internal citations omitted):

These principles, relevantly adapted to the circumstances of the Tribunal, include:

1.   A fixed sum costs order involves a departure from the usual process by which costs are assessed in accordance with the statutory procedures now relevantly found in the Legal Profession Uniform Law Application Act 2014 (NSW) (especially Pt 7 dealing with “ordered costs”) and the Legal Profession Uniform Law (NSW)…;

2.   A fixed sum costs order may be appropriate where:

(a)   the sum of costs in question is relatively modest…;

(b)   a party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment, …;

(c)   the assessment of costs would be protracted and expensive …; and/or

(d)   the case was complex…;

3. Sections 36(1) and (4) of the NCAT Act (which can be seen as equivalent to those in ss 56(1), 57(1)(d) and 60 of the CP Act) suggest that the following factors merit particular consideration:

(a)   the relative responsibility of the parties for the costs incurred;

(b)   the degree of any disproportion between the issue litigated and the costs claimed;

(c)   the complexity of the proceedings in relation to their cost; and

(d)   the capacity of the unsuccessful party to satisfy any costs liability,….

4.   An order for fixed sum costs should be based on an informed assessment of the actual costs, having regard to the information before the Tribunal. Furthermore, the approach taken to estimate the costs must be logical, fair and reasonable. This may involve an impressionistic discount of the costs actually incurred in order to take into account the contingencies that would be relevant in any formal costs assessment,…;

5.   The power to make a fixed sum costs order should only be exercised when the Tribunal considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available;

80. Given the estimated costs of a costs assessor (which, according to the publicly available material filed by the Council, commonly range between $3,500 and $7,000, based on assessors in the Supreme Court charging $313.50 per hour), the Council submitted that the additional costs arising from a costs assessment should be avoided, and the Tribunal should make a fixed sum costs order in the amount sought by the Respondent.

81. In the Council’s reply submissions, the Council noted that most of the 303 pages of submissions filed by Ms Webb had “no bearing at all on the costs application to be determined and therefore [was] irrelevant to the matters to be determined by the Tribunal in a costs application”. The Council added that many of the submissions were arguably, if not outright, “calculated to vex and defame the Respondent, its officers and the Crown Solicitor’s Office”.

82. The Council pointed out that Ms Webb did not respond to the special circumstances identified by the Council as applying under section 60(3) of the CAT Act. The Council noted that Ms Webb instead had made further “serious and unsubstantiated allegations against Council and its staff, which are strenuously refuted.” Much of the material filed was irrelevant to the Costs Application.

83. The Council noted Ms Webb’s incurrence of expenses but stated they have no bearing on the special circumstances raised. According to the Council, the “right of a person to seek judicial review of an administrative decision does not extend to indemnifying that person for acting unreasonably in commencing” or conducting the review proceeding.

84. The Council agreed with Ms Webb that section 60(2) of the CAT Act applies to either party in NCAT Proceedings, that is, any party can make a costs application to be determined by the Tribunal. However, it described as “baseless” Ms Webb’s submission that there is an understanding amongst the legal fraternity inclusive of the Tribunal that is only available to “formally qualified legal representatives” (citing, as an example to the contrary, Commissioner of Police v Robinson (No 2) [2022] NSWCATAP 280).

85. The Council disagreed with Ms Webb’s interpretation of section 60(3), noting that there is no authority for the proposition that a party applying for costs must answer each of the paragraphs in subsection (3) of the Tribunal to be able to award costs. A cursory examination of the Tribunal’s decisions shows that this is not the case (citing, as an example, Bilic v Commissioner of Police [2022] NSWCATAD 93 (“Bilic”).

86. The Council rejected Ms Webb’s argument that her abandonment of most of her claim was in fact consistent with the guiding principle for the practice and procedure of the Tribunal. It accepted that Ms Webb’s decision to do so drastically reduced the scope of the administrative review, but it was only undertaken by Ms Webb once the hearing had commenced.

87. The Council also rejected Ms Webb’s argument that the costs application was punitive. The Council reiterated that its only concern is to recover its costs of the proceedings before the Tribunal.

88. The Council acknowledged Ms Webb’s submissions that she is self-represented and not legally qualified. However, it pointed out that she is well experienced with these matters, and has appeared in excess of 19 matters either self-represented or as her husband’s agent. She would in fact have more experience in NCAT and GIPA matters than many practising solicitors. In any event, the Council submitted that her conduct warranting an award of costs should not be viewed more sympathetically because she is self-represented and not legally qualified.

89. The Council concluded that it has a right to apply for costs and did so in respect of the special circumstances of this matter. Most of Ms Webb’s submissions are irrelevant to the Costs Application, and she has made incorrect submissions on points of law and no compelling submissions on the Costs Application. The Council also noted that it is in the “public interest, and in the interests of preserving the integrity of the Tribunal, for the Tribunal to strongly reject the attempts by the Applicant to use the Tribunal as an arena to make serious and unsubstantiated allegations against the Council, its staff and the CSO.”

Ms Webb’s Position

90. Ms Webb reminded the Tribunal that she is not legally trained, qualified, or represented, and is a non-legal professional. She pointed out that the Tribunal openly advertises that it facilitates a member of the public self-representing. She compared her position to that of the Council, which has a legal team of deep experience both within the Council and in its external lawyers and submits she is at a disadvantage. In her view, in these circumstances, the prospect of a costs award is intimidating and heavy-handed.

91. Ms Webb accepted that the CSO had the right to be joined as an interested party but suggests that this does not equate to a “right to bully and intimidate, nor impose its unrealistic expectations of unqualified, untrained, unrepresented parties to proceedings”. She also stated that the Council is an agency with “personnel who are heavily evidenced to manipulate legislation, deprive legal rights, fabricate evidence, and pursue individuals who dare to exercise their legally enforceable (supposed) rights to access NSW Government Information.”

92. Ms Webb observed that the Council is “flush with in-house legal resources, and as such the costs claimed herein have at all times been completely avoidable”, rendering this case one of public interest.

93. As noted at paragraph 28 above, several pages of Ms Webb’s submissions of 31 March 2023 were dedicated to what she described as “personal factors” which stem from a long “chronology of administrative events” involving her and her husband’s dealings with the Council, including other, unrelated requests for government information. She submitted this is relevant, as there is nothing in the legislation that “prohibits the setting out of the personal factors of the Costs Application”. The long history of “inappropriate if not unlawful conduct on the part of the Respondent Port Stephens Council towards the Applicant and her husband” qualified, in her view, to require the dismissal of the Costs Application in its entirety. Ms Webb set out a range of allegations against an officer of the Council, Mr Wickham, dating back to around 2012.

94. Ms Webb also informed that on 30 January 2023, the IPC provided a full and unredacted copy of Document 38, without any impediment of use or claim of copyright. As a result of this, Ms Webb asks the Tribunal to agree no claim for costs should be entertained in respect of that document in these proceedings.

95. Ms Webb then turned to the provisions in section 60 of the CAT Act. She stated that she paid all of her own costs with the expectation that no third party will be held accountable for those costs, including a five-hour return trip to file documentation.

96. Ms Webb stated that section 60(2) “may easily be interpreted as being applicable to either party to proceedings” but claimed:

Yet, it is understood amongst the legal fraternity inclusive of the Tribunal that Section 60(2) only actually applies to formally qualified legal representatives, of which Applicant is not, making it prejudicial, discriminatory, and procedurally unfair.

97. Ms Webb then turned to section 60(3) and submitted that it “demand[s] the party making the Costs Application to satisfy each of the sub-clauses of Section 60(3)”. She pointed out that there is no “or” between the sub-sections, and nor does section 60(3) state “any of the following”. It thus “appears to be all inclusive and the Respondent is expected to answer each of the sub-clauses in their entirety in order to satisfy (to a high degree of probability) the special circumstances parameters.” In this regard, Ms Webb asked the Tribunal “to agree the parameters of Section 60(3) leave no room for the Tribunal’s discretion. The Respondent is obliged to satisfy each parameter to a high degree of probability and little latitude of the Tribunal’s discretion in order for the Costs Application to be granted in accordance with Section 60(3).”

98. Ms Webb also provided documentation which she says shows the CSO provided exclusive GIPA Training without proving that the Council was a “client of the CSO”.

99. Ms Webb also alleged that the witness from the CSO made misleading statements to the Tribunal about its training services and that as a result, Ms Webb “should not be ordered to pay any amount claimed under the Costs Application”.

100. Ms Webb then turned to the two grounds of “special circumstances” that the Council relied on its Costs Application. With respect to section 60(3)(f), Ms Webb referred again to an interlocutory decision in Choi v NSW Ombudsman of 6 June 2022 for the proposition that the Tribunal may consider submissions made outside of its directions, and should operate flexibly. Ms Webb referred to:

Numerous other cases where unrepresented parties have reserved their right to make oral submissions at Hearing as opposed to making written submissions in the lead up to a hearing.

Unrepresented parties cannot be expected to meet the demands of experienced, well equipped, highly trained opponents, who have unlimited resources and administrative support teams at their disposal, ensuring their submissions are legally eloquent and brimming with dialogue.

Again, the CSO’s assertion unrepresented parties should “…engage with the questions of statutory construction that arise…” is completely unrealistic if not pretentious and condescending.

The Tribunal would agree some of those who enter the NCAT arena are orators and some are writers.

Any reasonable person would agree the actions of the Applicant in the substantive hearing were understandable and reasonable.

The Applicant is of the view the Respondent has failed to make out its argument on this issue.

101. As for the Council’s second ground, Ms Webb stated that the assertion she abandoned a portion of her claim is inaccurate. The Applicant said that she made clear she did not accept the Respondent’s decisions concerning the bulk of the requested information and that she instead agreed to ensure that section 36 of the CAT Act was duly exercised by limiting the proceedings to the most crucial documents the subject of the request.

102. Ms Webb characterised the Council’s Costs Application as “punitive, as is the attitude and history of the Respondent’s responses to valid requests for information, and other interactions with the Applicant and her husband, for a period now exceeding (10) ten years.” She therefore concluded the Council had “failed to make out its argument on this issue.”

103. In conclusion, Ms Webb submitted:

The Applicant respectfully relies upon the case of McEwan v Port Stephens Council (No. 2) (2022) NSWCATAP 386 for the dismissal of the Costs Application.

The Respondent Port Stephens Council has failed to adequately argue its case to support the Costs Application.

The Respondent Port Stephens Council has failed to remotely address each of the (7) seven sub-clauses within the NCAT Act 2013 Section 60(3).

The Respondent Port Stephens Council is on the record by passing legislated protocols for procurement of legal services.

The Respondent Port Stephens Council has failed to undertake any competitive legal services tendering process in order to ensure the best use of the public monies entrusted to it.

For of the reasons outlined above, including the personal factors of the Applicant in the substantive proceedings, the Costs Application should be dismissed.

104. In her Reply submissions, filed on 28 April 2023 and 8 May 2023, Ms Webb submitted that:

the Respondent has failed to provide any evidence to the Tribunal in support of its Costs Application. The sum total of its evidence is a ledger of legal activity (supposed).

Relevant credible evidence is reasonably expected to include documentary evidence Port Stephens Council lacked the in-house legal resources to represent in this case.

105. Ms Webb submitted that because the in-house counsel had more experience than the cumulative experience of the Lindsay Taylor lawyers, it was inappropriate for the Council to retain external solicitors.

106. Ms Webb repeated her arguments about section 60 of the CAT Act. She disputed the claimed special circumstances identified by the Council. Ms Webb noted an error in the subheading of the Respondent’s Reply Submissions insofar as it referred to “Section 60 of the Civil and Administrative Appeals Act 2013” instead of “Section 60 of the Civil and Administrative Tribunal Act 2013”. On the basis of this error, she submitted that all paragraphs under that subheading should be disregarded and “insist[ed] that the Tribunal not make any discretionary allowance on this issue as a matter of procedural fairness”.

105. Ms Webb said that “compounding the lack of evidence to support the existence of any special circumstances”, one of the partners of Lindsay Taylor held a position of conflict of interest because in 2020 he published some comments about NCAT and copyright claims that should have led to the firm declining representation for ethical reasons. Ms Webb then reiterated allegations about Mr Wickham, commented that the CSO and the Council had a relationship of longer than ten years, and referred to a cross-examination during a proceeding before the Tribunal in 2017.

106. She concluded her Reply Submissions by stating that she “places her trust in the Tribunal to determine this matter fairly and equitably, to dismiss the Respondent’s Application for Costs on this occasion on the basis it has not satisfied the parameters of the NCAT Act 2013 Section 60(3).”

The Tribunal’s Consideration

General observations on Section 60

109. The Tribunal notes that the general rule, expressed under section 60(1) of the CAT Act, is that parties bear their own costs. Section 60(2), however, provides that the Tribunal “may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award on costs.”

110. It is common ground between the Parties, and clear from the statutory text, that section 60(2) applies to either party in NCAT proceedings. The Tribunal disagrees with Ms Webb that there is an “understanding” amongst the “legal fraternity inclusive of the Tribunal” that “Section 60(2) only actually applies to formally qualified legal representatives, of which the applicant is not, making it prejudicial, discriminatory, and procedurally unfair.” There is no such limitation in the language of the statute. Costs orders have been sought, and obtained, against non-legally qualified parties.

111. Whether or not costs are awarded in any given case comes down to the Tribunal being satisfied that there are special circumstances warranting an award on costs. The onus is on the party seeking an order for costs to satisfy the Tribunal that there are special circumstances warranting an award of costs in its favour (McEwan v Port Stephens Council (No 2) [2022] NSWCATAP 386 at [38] (“McEwan AP”)). Section 60(3) provides guidance on what may constitute special circumstances.

112. The Tribunal disagrees with Ms Webb’s interpretation of section 60(3) that a party applying for costs under section 60 must address each of the paragraphs in subsection 3 for the Tribunal to be able to award costs. The language of section 60(3) is not phrased in mandatory terms. It states that the “Tribunal may have regard to the following…”. It does not use the word “and” between the list items, and the fact that the final subsection (g) is phrased as “any other matter that the Tribunal considers relevant” confirms that the list is inclusive and illustrative of the types of matters that the Tribunal may consider in exercising its discretion under section 60(2). In decisions where the Tribunal has ordered costs in the past, it has often done so in consideration of some and not all of the subparagraphs of section 60(3). (see, e.g., Bilic, McEwan v Port Stephens Council (No. 2) [2022] NSWCATAD 308 (“McEwan”); Wojciechowska v Commissioner of Police, NSW Police Force No 2) [2023] NSWCATAP 104 (“Wojciechowska”). Indeed, the Tribunal has expressly confirmed, in a decision cited by Ms Webb, that section 60(3) of the CAT Act sets out what the Tribunal may have regard to in a “non-exhaustive way” (McEwan AP at [39]).

113. “Special circumstances” are those that are out of the ordinary, they do not have to be extraordinary or exceptional. (See Grasso at [11]; Bilic at [7], both citing Cripps v G & M Mawson [2006] NSWCA 84 at [60]).

114. The power to award costs is a discretionary power vested in the decision maker, to be exercised judicially (Grasso, Alexander James Pty Ltd v Pozetu Pty Ltd (No. 2) [2016] NSWCATAP75 (“Alexander James”)). The exercise of that discretion requires the Tribunal to weigh whether the circumstances are sufficient to amount to “special circumstances that justify departing from the general rule that each party bear its own costs.” Each situation is to be assessed on a case-by-case basis to see whether special circumstances exist so as to warrant the award of costs (McEwan AP [44]). As noted by the Appeal Panel in Alexander James at [14] to [16] (see also Grasso at [12]; McEwan AP at [45]):

An assessment whether circumstances are “special” involves the exercise of a value judgement carried out by way of comparison between what is not “special” and what is special. The evaluative process is necessarily one of impression informed by the particular provisions of section 60.

115. An order for costs is intended to compensate the successful party. It is not intended to be punitive in nature (Grasso at [12]; Oshlak v Richmond River Council [1998] HCA 11; Hamod v State of New South Wales [2002] FCA 424).

116. Applying the above principles to the present case, the Tribunal is satisfied that there are special circumstances to warrant a costs order.

117. The Tribunal will focus below on those factors raised by the Respondent pertaining to the factors listed in subparagraphs 60(3)(f) and (g). The Respondent did not, for example, directly rely on subparagraph 60(3)(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”). It nevertheless bears noting that Ms Webb was unsuccessful before the Tribunal with respect to every document sought. The Tribunal is not persuaded by Ms Webb’s arguments with respect to Document 38, which she has since obtained directly from the IPC. IPC was the creator of that document and owner of the copyright. Its decision to disclose the document, having been requested directly, has no bearing on whether the Council took the appropriate action at the time with respect to Document 38.

Did Ms Webb unreasonably cause the Council to incur costs (s 60(3)(g))?

118. The Tribunal turns now to the Council’s first broad reason articulated for claiming costs, namely that Ms Webb unreasonably caused the Council to incur costs (citing CAT Act, s 60(3)(g)). The Council submits that it was unreasonably caused to incur costs because Ms Webb waited until the oral hearing effectively to abandon her claim with respect to all but five of the documents identified as responsive to her Access Application.

119. The Tribunal noted above that Ms Webb in her application for administrative review did not specify any category of document subject of review, or give any reason beyond disagreeing with the Council. She likewise presented no written arguments, narrowing of issues, or submissions or evidence when she was directed by the Tribunal to file such materials. It was only at the hearing that Ms Webb stated “I would be very happy for today just to address the documents 34 to 38 and leave those others aside. That is, concerning the signatures, that is concerning redacted information concerning the training of council officers and things like that, I think we could really narrow it down to those particular documents, which relate to the IPC and to the Crown Solicitor and I think that would probably speed things up greatly”

120. The Senior Member asked her to clarify: “does that mean that you are no longer contesting the decision with respect to those documents containing the redacted signatures or that you just wish to focus the hearing?” Ms Webb responded “of course, of course, I have no problem whatsoever with the redaction of signatures and I do understand that, I’ve seen hundreds of council signatures over the years, so you know, it’s really, it’s really nothing”. The Council’s solicitor commented that he thought, based on what was before the IPC review, that that might be the case, but noted that the Applicant had “put on nothing really, we have no idea, but some idea of what the matter’s about.”

121. When Ms Webb presented, from written notes, her oral submissions, the Council’s solicitor repeated that it was “unfortunate that Ms Webb chose not to provide the submissions to the party. It’s clear that they’re in prepared form, they’re not off the cuff comments arising from the evidence.”

122. At the end of the hearing, the Tribunal asked Ms Webb again for “clarification on the other documents of the 40 documents, apart from 34 to 38, is it your position now that the decision of the Council to, with respect to those other documents was correct? They’re no longer, they’re not challenged?” Ms Webb replied: “I’m certain, no I don’t agree that they’re correct but I’m saying to the Tribunal I don’t wish to pursue those today.”

123. The Tribunal accepts the Respondent’s contention that it was put to unnecessary work to address categories of documents that were ultimately not pressed by Ms Webb. She did not reveal this narrowing of issues until the moment of the oral hearing itself. Her narrowing of issues may have served to shorten the length of the hearing itself, but due to the timing, it did not reduce the workload of the Respondent in preparing for the hearing. The Respondent still had to undertake research and drafting of submissions, for example, on whether the redactions of personal signatures were appropriate. This is evident from entries in the fee ledger provided by the Respondent showing work done on “draft submissions and research public interest on signatures…”. This work, and many hours of hearing preparation also recorded in the ledger, was all undertaken before Ms Webb revealed that she had “no problem whatsoever with the redaction of signatures, and I do understand that.”

124. The approach that Ms Webb took, deciding not to comply with the Tribunal’s directions to file submissions and materials, articulate any position, or even identify before the hearing which documents were still in contention, left the Council in a position of having to decipher and divine the arguments to which it had to respond (similar to the Respondent in Wojciechowska as described at [17]). This in turn caused the Council unreasonably to incur expenses. It is no answer for Ms Webb to claim that “some of those who enter the NCAT arena are orators and some are writers”. The CAT Act and the Tribunal’s orders do not distinguish between those who self-identify as orators or writers. It is expected that all parties cooperate with Tribunal directions. It is not acceptable for Ms Webb to rely, pre-emptively and repeatedly, on the discretion of the Tribunals to dispense with the strict implementation of Tribunal orders. The Tribunal acknowledges that Ms Webb is self-represented and not legally qualified. However, as the Council pointed out, she has appeared in over 19 matters before the Tribunal either self-represented or as her husband’s agent and thus has extensive experience before the Tribunal.

125. In the circumstances described above, the Tribunal accepts that Ms Webb did unreasonably cause the Council to incur costs, constituting special circumstances under section 60(3)(g).

Did Ms Webb fail to comply with duty under section 36(3) (s 60(3)(f))?

126. The Respondent’s first broad reason for applying for costs under section 60(3)(g) is related to the second broad reason, falling under the section 60(3)(f) consideration of “whether a party has refused or failed to comply with the duty imposed by section 36(3)”. The duty imposed by section 36(3) of the CAT Act is for any party to co-operate with the Tribunal to give effect to the guiding principle of facilitating the “just, quick and cheap resolution of the real issues in the proceedings”, and for that purpose to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal.

127. The Tribunal agrees with the Respondent that Ms Webb has failed to comply with the duty imposed by section 36(3) in several respects. First, Ms Webb failed to comply with Senior Member Montgomery’s order to file submissions and evidence by 22 August 2022. The document she did file, four days late, did not advance the matter and stated simply that “Submissions are reserved for closing comments at the Hearing of this matter.” This left the Council in the dark, right up until the hearing, as to what Ms Webb’s grounds for review were, and in respect of which documents. For reasons already noted above, the Tribunal disagrees with Ms Webb that she actually “exercised” her section 36 duty by narrowing the issues on the day of the hearing. It was simply too late. It also was not entirely clarifying – while earlier in the hearing she seemed to concede she had “no problem whatsoever with the redaction of signatures”, at the end of the hearing (and now in her costs submissions) she is less clear about whether or not she was actually formally maintaining her challenge to all partially redacted documents.

128. Based on the considerations set out above, the Council has satisfied the Tribunal that Ms Webb failed to comply with her duty in section 36 of the CAT Act, and because that disadvantaged the Respondent by causing extra work and costs, the Tribunal finds it warrants an award of costs under section 60(2).

129. The Tribunal adds that the failure to comply with Senior Montgomery’s orders was not an isolated instance in these proceedings of Ms Webb failure to cooperate with the Tribunal to give effect to the guiding principle of facilitating the “just, quick and cheap resolution of the real issues in the proceedings.” Ms Webb has sent several communications and filed pages of documents that are not in fact directed at the “resolution of the real issues in the proceedings”, and indeed contained irrelevant information distracting from the real issues in the proceedings. Examples include:

• Ms Webb’s 30 August 2022 email in which she expressed her “extreme concern” at the use of boilerplate language in a short letter to the Tribunal’s Registry identifying which individual lawyer to contact if the Registry needed to discuss anything arising. Ms Webb insinuated impropriety, took issue with the job title of the lawyer and sent a copy of the Council’s Code of Conduct, accusing the law firm of a “deliberate attempt to take an advantage of an unrepresented party.”

• The 303-page response in the context of the Costs Application contains mostly irrelevant information about personal history and decades old complaints about personnel of the Council which have no direct bearing on the Costs Application and nothing to do with the original Access Application. Ms Webb also repeatedly besmirches Council personnel and CSO lawyers, accusing them of deliberate misrepresentation and misconduct.

• Ms Webb filed a 14-page “further reply” on costs, after having requested leave from the Tribunal to do so, but before the Tribunal ruled on the same. When she was granted leave to file a submission limited in scope to matters relevant to costs, and in length to 5-pages she simply shrunk the font size of the 14-page submission to five pages. Instead of engaging with the issues relevant to special circumstances under section 60 she asked the Tribunal to disregard the Council’s arguments because they appeared under a heading with an obvious clerical error in the name of the statute.

130. The above incidents further demonstrate that Ms Webb has not cooperated in the “just, quick and cheap resolution of the real issues in the proceedings.”

131. In the Tribunal’s view, the fact that Ms Webb has repeatedly sought to ventilate a series of grievances, allegations and accusations that are irrelevant both the Access Application and the Costs Application, is a further matter warranting the exercise of the discretion to make an award of costs (see McEwan at [64]).

Conclusion on Special Circumstances

132. The Tribunal is mindful of the fact that this matter concerned administrative review proceedings under the GIPA Act and that the objects of the GIPA Act are set out as follows in section 3:

(1)  In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by—

(a)  authorising and encouraging the proactive public release of government information by agencies, and

(b)  giving members of the public an enforceable right to access government information, and

(c)  providing that access to government information is restricted only when there is an overriding public interest against disclosure.

(2)  It is the intention of Parliament—

(a)  that this Act be interpreted and applied so as to further the object of this Act, and

(b)  that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

133. Parties should not be deterred from acting to access government information from agencies because they are concerned that they may be bound to submit to a costs order on an application for review of a decision by the Tribunal. An award of costs should not act as a deterrent for applications for administrative review. However, as the Tribunal has noted on prior occasions (e.g., Wojciechowska at [42], McEwan AP at [44]), every costs application must be considered on its own merits.

134. In this case, in the circumstances detailed above, the Tribunal considers that there are special circumstances which warrant the awarding of costs, that is

• the Council was wholly successful in the matter,

• Ms Webb caused the Council unreasonably to incur costs and,

• Ms Webb failed to comply with her duty under section 36(3).

Is a Fixed Costs Order Appropriate and in What Amount (s 60(4))?

135. The Respondent is seeking a costs order for a fixed amount of $10,000.00. Section 60(4)(a) of the CAT Act provides that the Tribunal may determine “to what extent costs are to be paid”. This has been found to empower the Tribunal to make a fixed sum costs order when considered appropriate (e.g., 203 Castlereagh and Wojciechowska).

136. In Bechara (t/as Bechara and Co) v Bates [2016] NSWCA 294, Beazley P, Meagher and Payne JJA set out the principles in relation to fixed costs orders as follows (internal citations omitted):

[12] The power to award a lump-sum should only be exercised when the Court considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials...

[13] The power may also be exercised where a party’s conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings…

[14] A “broad brush” approach is appropriate. To require the same or similar level of detail as in a formal costs assessment would defeat the purpose of the lump sum order….

[15] The courts have typically applied a discount in assessing costs on a gross sum basis…

[18] The Court is satisfied that the total costs of this litigation will become even more disproportionate if the costs are referred for assessment and a lump-sum costs order is not made. The reasoning in Hamad v New South Wales at [816]-[817] is apposite.

137. The Respondent cited the decision of the Appeal Panel in 203 Castlereagh for the following principles relevant to fixed sum costs orders in the NCAT context (at [40] to [41], internal citations omitted):

(1) A fixed sum costs order involves a departure from the usual process by which costs are assessed in accordance with the statutory procedures now relevantly found in the Legal Profession Uniform Law Application Act 2014 (NSW) (especially Pt 7 dealing with “ordered costs”) and the Legal Profession Uniform Law (NSW)…;

(2) A fixed sum costs order may be appropriate where:

(a) the sum of costs in question is relatively modest…;

(b) a party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment,…;

(c) the assessment of costs would be protracted and expensive, …; and/or

(d) the case was complex, …;

(3) Sections 36(1) and (4) of the NCAT Act … suggest that the following factors merit particular consideration:

(a) the relative responsibility of the parties for the costs incurred;

(b) the degree of any disproportion between the issue litigated and the costs claimed;

(c) the complexity of the proceedings in relation to their cost; and

(d) the capacity of the unsuccessful party to satisfy any costs liability….

(4) An order for fixed sum costs should be based on an informed assessment of the actual costs, having regard to the information before the Tribunal. Furthermore, the approach taken to estimate the costs must be logical, fair and reasonable. This may involve an impressionistic discount of the costs actually incurred in order to take into account the contingencies that would be relevant in any formal costs assessment…;

(5) The power to make a fixed sum costs order should only be exercised when the Tribunal considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available, …

The types of supporting material usually required include:

(1) the timing and nature of costs incurred, including details of the work done, the hours worked, the hourly rates actually charged and, in the case of counsel’s fees, similar details concerning the work done by counsel;

(2) the rates at which counsel, other lawyers and other professional advocates, if relevant, charge; and

(3) the amount likely to be recoverable on assessment in the event that that took place, which may be established by “objective arm’s length evidence from a costs assessor”…

138. Mr Pennikilampi’s affidavit appends, as Annexure A, a fee ledger which shows the Respondent’s costs in the proceedings up until 12 January 2023 (before the Costs Application was made). This shows the total costs for the Respondent up until that date to be $20,914.85 including GST. It includes a breakdown by time units, tasks, and fee earners. The Tribunal considers that this costs information provides sufficient information to determine an appropriate sum from the available materials.

139. Further, Ms Webb’s conduct has unnecessarily contributed to the costs of the proceedings, and the costs incurred and being claimed are disproportionate to the result of the proceedings and the total costs of the proceedings would become even more disproportionate if the costs were referred for assessment and a lump-sum costs order were not made.

140. The Council has also pointed out that the lump sum of $10,000.00 that it claims represents less than half of its actual costs, and also does not include work done in relation to the costs application itself (including reviewing and/or responding to Ms Webb’s 303-page, 14-page and 5-page submissions and her two stay applications). The Tribunal notes that the Council has also kept costs down by having junior or mid-level solicitors rather than a partner perform certain tasks when possible, and that it refrained from engaging counsel. The Tribunal considers that this was a reasonable approach, and it does not agree with Ms Webb’s suggestion that because the in-house counsel at the Council had decades of experience as a lawyer that it would have been more cost-efficient or appropriate for her to handle the proceedings exclusively without retaining an external law firm. The Tribunal notes also that the Council had already written off some hours before reaching the total figure of $20,914.85.

141. Annexure B to Mr Pennikilampi’s affidavit shows that if costs were to be assessed, the costs of a costs assessor are likely to be in the range of $3,500 to $7,000. The Tribunal considers this to constitute a disproportionate amount of the relatively modest sum which the Council now seeks.

142. Ms Webb has not directly addressed the Council’s evidence on costs incurred, despite having taken the opportunity to make several rounds of submissions on costs.

143. The Tribunal is of the view that the costs claimed by the Council constitute a modest sum and that formal assessment of the costs would only add to the costs burden on the Respondent, leading the costs to become disproportionate if they are referred to assessment.

144. Having considered the affidavit of Mr Pennikilampi and the documents attached to it, the Tribunal is satisfied that it can determine an appropriate sum of the costs. I have considered that the costs incurred by the Council were reasonable but would subject the already reduced $10,000.00 lump sum claimed to a further reduction. As noted in the cases cited above (203 Castlereagh (citing Hamod at [820]; Wojciechowska at [51]-[52]), the process of arriving at a lump sum may “involve an impressionistic discount of the costs actually incurred in order to take into account the contingencies that would be relevant in any formal costs assessment”. In Wojciechowska the Tribunal applied a 20% discount to the amount claimed, as was done in the Supreme Court cases cited by the Tribunal.

145. Additionally, while it is true that Ms Webb narrowed her case at the last minute during the hearing, and that the precise contours of her challenges to the Council’s decision on the Access Application have always remained somewhat opaque, the Tribunal does not consider the impact on the legal costs of the Respondent to be quite as extreme as the Respondent claims. As recounted in paragraph 6 above, seeing as Ms Webb acquired full access to 23 of the 40 documents, her challenge to the Council decisions at most could be reasonably understood as being to 17 remaining documents, rather than the full 40 as the Respondent suggests in its Costs Application. She therefore did not abandon “seven-eighths” of her claim, or whittle it down from 40 to 5. The proportion was closer to two-thirds or a reduction from 17 to 5 documents. The Tribunal maintains that the conduct of Ms Webb caused the Respondent unreasonably to incur legal expenses and did not comply with her duties under section 36 of the CAT Act. Nevertheless, it has taken this factor into account, along with all other circumstances described above, and decides that a 30% discount from the $10,000.00 lump sum claimed by the Respondent is appropriate in this case.

146. Accordingly, the Tribunal decides to award the Council costs in the lump sum of $7,000.00 to be paid by Ms Webb within 28 days of this order.

Conclusion

147. Based on all the considerations set out above, and having regard to the material before me, I am satisfied that special circumstances exist as to warrant an order that the Council be awarded costs under section 60(2) of the CAT Act and that it is appropriate to order payment of a lump sum in the amount of $7,000.00.

Orders

148. The Tribunal makes the following orders:

1. An oral hearing on the issue of costs is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

2. Pursuant to section 60(2) of the Civil and Administrative Tribunal Act 2013 (NSW), the Applicant, Ms Telina Webb, is ordered to pay the Respondent, the Port Stephens Council, costs in the amount of $7,000.00 within 28 days of this order being made.

3. Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure of the material filed by the Respondent on a confidential basis is prohibited. That material is not to be released to either the Applicant or the public.

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: 06 June 2023