Woodhouse v City of Sydney Council
[2012] NSWADT 95
•22 May 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Woodhouse v City of Sydney Council [2012] NSWADT 95 Hearing dates: 22 February 2012 Decision date: 22 May 2012 Jurisdiction: General Division Before: S Higgins, Deputy President Decision: 1.The decision of the Council in regard to Attachment B is affirmed.
2.The decision of the Council in regard to Attachment C is varied in accordance with my findings in paragraph 50 of these reasons for decision.
3.Mr Woodhouse's application for costs is refused.
Catchwords: Government Information (Public Access) - whether disclosure of information could reasonably be expected to diminish the competitive commercial value of the information or prejudice legitimate business, commercial, profession or financial interests Legislation Cited: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1982 (Cth)
Freedom of Information Act 1989 (NSW)(repealed)
Government Information (Public Access) Act 2009
Local Government Act 1993Cases Cited: Attorney-General's Department v Cockcroft (1986) 10 FCR 180
Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286
Leach v Sydney Water Corporation [2010] NSWADT 298
McKinnon v Blacktown City Council [2012] NSWADT 44
Neary v State Rail Authority [1999] NSWADT 107Category: Principal judgment Parties: Andrew Woodhouse (Applicant)
Council of the City of Sydney (Respondent)Representation: Counsel
C Norton (Respondent)
A Woodhouse (Applicant in person)
Sydney City Council (Respondent)
N Case of the Office of Information Commissioner
File Number(s): 113033
REasons for decision
On 9 February 2011, Mr Woodhouse filed an application with the Tribunal seeking review of the decision of the respondent Council (the Council) to refuse him access to information he had sought, pursuant to the Government Information (Public Access) Act 2009 (the GIPA Act). The information Mr Woodhouse sought access to was described as follows:
Attachments B & C, item 3, Cultural and Community Affairs Committee, 7th February 2011.
The Cultural and Community Affairs Committee is a Committee of the Council and Item 3 on its agenda for the Meeting of 7 February concerned a sponsorship proposal Council had been received from Walt Disney Company Australia Pty Ltd (Disney) in regard to its Mary Poppins Musical. The Committee recommended that the Council provide sponsorship support and Mr Woodhouse sought access to the information in the abovementioned attachments which were referred to in the Committee's report on the meeting. A copy of the relevant pages of the report of the Committee was attached to Mr Woodhouse's application. In that report it is noted that the Committee's recommendation of sponsorship support was for 'value-in-kind services and revenue forgone to a maximum of $100,000 excluding GST'. It was also noted that the Committee had resolved that the abovementioned Attachments were to remain confidential in accordance with sections 10A(2) (d) (i) and (ii) of the Local Government Act 1993 (the LG Act). Attachment B is described as an 'Event Evaluation' and Attachment C is described as the 'Proposed Sponsorship Packages'.
History of proceedings before the Tribunal
Mr Woodhouse initially made his application for access, by email, on 8 February 2011. An officer of the Council replied to that request on the following day. In that reply the Council informed Mr Woodhouse that the documents could not be made publicly available to him as they were confidential pursuant to sections 10A and 11 of the LG Act. Mr Woodhouse was also informed that there was a public interest against disclosure of the information in the Attachments, by reason of section 14, item 4(c) and (d) of the GIPA Act (i.e. business interests of agencies or other persons).
Mr Woodhouse's application first came before me at a planning meeting on 19 April 2011. At this meeting, the Council contended that the Tribunal did not have jurisdiction to hear and determine the matter, as Mr Woodhouse's request for access had been an informal one, pursuant to section 8 of the GIPA Act. That is not a decision that is reviewable by the Tribunal (see section 80 of the GIPA Act). To avoid any jurisdiction issues, Mr Woodhouse agreed to make a formal application. That application was made on 14 April 2011. After consulting Disney, on 19 May 2011, the Council determined to refuse Mr Woodhouse access to the information in the documents, on the basis that it found there was an overriding public interest against disclosure. The Council identified the public interest against disclosure as being the business interests of Disney and the Council (see item 4(c) and (d) of the table in section 14 of the GIPA Act). On 29 April 2011, Mr Woodhouse made a formal internal review application. On 14 June 2011, the Council determined the internal review request and affirmed the original decision.
Mr Woodhouse pressed his application for access and that application was heard before me on 22 February 2012. In part, that hearing was held in confidence, in the absence of the public and the applicant, pursuant to section 107 of the GIPA Act and section 75(2) of the Administrative Decisions Tribunal Act 1997. During that hearing the Council agreed to provide Mr Woodhouse with a redacted copy of each Attachment. In regard to the redacted information, the Council adhered to its decision that there was an overriding public interest against disclosure of this information.
Mr Woodhouse was given a copy of the Attachments with the relevant redactions. Consequently the only matter in issue was the redacted information in each document. As Mr Woodhouse had not had an opportunity to examine the redacted copies of each Attachment, by consent I made orders along the following lines:
(a) an order requiring Mr Woodhouse to inform the Tribunal, the Council and the Office of Information Commissioner as to whether he pressed his application in regard to the redacted information. As I understand it, Mr Woodhouse informed the Council that afternoon he pressed his application,
(b) an order that in the event Mr Woodhouse did press his application, on or before 23 March 2012, he was to file and serve written submissions on any further issues, not addressed in his earlier submissions,
(c) an order for the filing and serving of submissions in reply (if any) by the Council and the Office of Information Commissioner, and
(d) an order that the matter was to be determined on the papers (see section 76 of the ADT Act) and the oral submissions that were made during the course of the hearing that day.
In compliance with the orders, the Council filed and served its written submissions. Mr Woodhouse, on the other hand, did not file and serve any written submissions until 18 April 2012. These submissions were 14 pages in length and had attached to them a number of documents. At the conclusion of his submissions, Mr Woodhouse again pressed his application for costs.
For the reasons set out below, I have found (a) the decision of the Council in regard to the redacted information in Attachment A is the correct and preferred decisions, (b) the decision of the Council in regard to the redacted information in Attachment C is varied in accordance with paragraph 50 of these reasons for decision, and (c) Mr Woodhouse has not established any basis on which the general rule that each party pay its own costs should be departed from (see section 88 of the Administrative Decisions Tribunal Act 1997 (the ADT Act)).
Relevant legislation
The legislation relevant to this application are the provisions in the GIPA Act. That Act came into operation on 1 July 2010. Its objects are set out in subsection 3(1) which is in the following terms:
3 Object of Act
(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.
The term 'government Information' is broadly defined in subsection 4(1) of the GIPA Act to mean 'information contained in a record held by an agency'.
The word 'agency' is also defined in subsection 4(1) of the GIPA Act. It includes a local authority, which is defined in clause 1 of Schedule 4 of the GIPA Act to mean, 'a council or county council within the meaning of the Local Government Act 1993.' The Council is such a council and is therefore an agency to which the GIPA Act applies. Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an 'overriding public interest against disclosure'.
Subsection 9(1) of the GIPA Act gives every person who makes an access application for government information a legally enforceable right to be provided with access to the information in accordance with the Act, unless there is an overriding public interest against the disclosure of the information.
Subsection 12(1) provides that there is a 'general public interest in favour of the disclosure of government information.' Subsection 12(2) provides that nothing in the GIPA Act limits any other public interest consideration in favour of the disclosure of government information, which may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. The subsection also sets out a number of examples of public interest considerations in favour of disclosure of government information.
The public interest considerations against disclosure are set out in subsection 14(1) and (2) of the GIPA Act which relevantly provide as follows:
14 Public interest considerations against disclosure
(1) ....
(2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
(3) ...
(4) ...
Table
1. ...
4 Business interests of agencies and other persons
There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:
(a) ...,
(b) ...,
(c)diminish the competitive commercial value of any information to any person,
(d) prejudice any person's legitimate business, commercial, professional or financial interests,
(e) ...
There will only be an overriding public interest against disclosure when the public interest test in section 13 is satisfied. That section relevantly provides:
'There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.'
Section 15 of the GIPA Act sets out the principles which are to apply when considering whether there is an overriding public interest against disclosure. That section provides:
15 Principles that apply to public interest determination
A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:
(a) Agencies must exercise their functions so as to promote the object of this Act.
(b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner.
(c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.
(d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.
(e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
Where the information for which access is sought includes personal information about that person, or about a person's business, commercial, professional or financial interests, section 54 of the GIPA Act requires the agency to take steps, which are reasonably practical, to consult with the relevant person to whom that information relates. Subsection 54(5) provides that any objection to disclosure, made by the person consulted, must be taken into account in the course of determining whether there is an overriding public interest against disclosure of the information sought.
Section 55 provides that personal factors relating to an applicant can be taken into account in deciding to grant access. In limited circumstances these factors may also be taken into account in refusing access. There are no such factors being relied on in this application.
Section 58 of the GIPA Act sets out how an access application is to be decided by an agency. This includes a decision to provide access to the information (paragraph 58(1)(a)) and a decision to refuse to provide access to the information because there is an overriding public interest against disclosure of the information (paragraph 58(1)(d)).
On an application for review of a decision of an agency to the Tribunal, section 105 of the GIPA Act places the onus on the agency to establish that the decision, the subject of review is justified.
Section 107 of the GIPA Act makes provision for the procedure in dealing with information for which there is or may be a public interest consideration against disclosure. Pursuant to subsection 107(3) the Tribunal has received into evidence a full copy of the Attachments in dispute in the absence of the public and the applicant.
Material before the Tribunal
At the hearing, in support of its claim, the Council tendered into evidence two affidavits of Andrea Beattie, Senior Strategy Advisor for the Council. The first affidavit was sworn on 16 May 2011 and the other affidavit was sworn on 18 July 2011. Exhibited to the affidavit sworn on 18 July 2011 is confidential exhibit AB-1. This exhibit, accepted into evidence under subsection 107(3) of the GIPA Act, is in a sealed envelope and marked confidential. As explained by Ms Beattie at paragraphs 11 and 12 of her affidavit the envelope contained three confidential documents that had been submitted by Disney, to the Council, in support of its request for sponsorship. At the request of the Council, pursuant to subsection 107(3) of the GIPA Act, the documents in this exhibit were received in evidence, in confidence, in the absence of the public and the applicant.
The Council also relied on its written submissions of 19 July 2011, 28 October 2011 and 10 April 2012.
Written submissions were filed and served by the Information Commissioner in October and on 8 November 2011.
Mr Woodhouse did not require Ms Beattie for cross-examination. He did however, rely on a number of written submissions that he had filed and served prior to the hearing. These were dated 14, 25 October 2011, 20 February 2012 (Mr Woodhouse filed two written submissions on this day one submission relating to the substantive application and the other relating to his application for costs). As I have indicated, he also relies on his written submissions of 18 April 2012.
Attachment B - the Event Evaluation
Attachment B consists of three pages, a cover page and a schedule, which extends from page two to page three. The cover page, stamped Confidential and entitled 'Commercial in Confidence Event Evaluation', has been provided to Mr Woodhouse in full. The schedule on pages two and three, consists of three columns and twelve rows. Mr Woodhouse has been given access to the heading of each column, which is 'Criteria', 'Assessment' and 'Rating'. Mr Woodhouse has also been given access to all the information in the column under the 'Criteria' and 'Rating' headings. That is, he has been provided with access to all the information in the first column and the last column of the schedule. The information he has not been provided with is that which is in the middle column under the heading 'Assessment'.
In her affidavit, sworn 16 May 2011, Ms Beattie explained that Council has developed and implemented a commercial creative events sponsorship programme. The programme she said is aimed at supporting a limited number of major creative events that deliver economic, social, cultural and other benefits to the Council's local government area. She said that sponsorship under the programme was generally delivered in the form of value-in-kind services, including the waiving or discounting fees and charges for the use of the Council's assets, networking and facilitation support and assistance with marketing and media campaigns. The programme she said was implemented in accordance with the Council's grants and sponsorship policy, a copy of which she annexed to her affidavit. Ms Beattie explained that organisations seeking sponsorship support are required to provide Council with an outline of their event and details of their forecasted audiences and tourism numbers, marketing investment and a broad outline of their marketing campaign so that the Council can be assured that the audience and tourism targets might be achieved. This information, Ms Beattie explained was generally commercially sensitive business information of the requesting organisation and as a result these organisations were advised to mark any such information as being commercially sensitive. Once the information is received the Council evaluates the sponsorship request against the established criteria as set out in the Council's grants and sponsorship policy. Ms Beattie explained that confidential Attachment B is the evaluation undertaken by an officer of the Council, in accordance with the criteria in the policy, of the Disney sponsorship proposal. That evaluation she said consisted of the commercially sensitive business information Disney had provided to the Council, in confidence, for that purpose. Ms Beattie said, without being provided with this commercially sensitive information, the Council could not evaluate the benefits the requested sponsorship proposal might bring to the City and the State as a whole.
In her first affidavit Ms Beattie said that governments invested in major events as they bring intrastate and interstate tourism to their area. They also enhance the international profile of the host city and State in which the event is hosted. That is, they deliver economic, social and community benefits to the city that hosts the event and also to the State as a whole. Ms Beattie elaborated on this evidence in her second affidavit. She said that, within Australia, the city of Sydney and Melbourne compete for such events, especially the premier show of an event. While the Disney proposal for the Mary Poppins Musical did not involve a premier show, Sydney still competed in regard to sponsorship. Ms Beattie explained that until recently, Sydney had been relatively unsuccessful in attracting these events, in particular the premier of such events. She said that the competitive environment, between Sydney and Melbourne, for event attraction had changed in mid 2007 with the establishment of Events NSW (now known as Destination Sydney) and the implementation of its strategy to secure major musical theatre events for Sydney. The Council's contribution to this strategy is its events sponsorship programme.
Ms Beattie said that it had been estimated that internationally renowned musicals, which are attracted to a major city can generate around '$3,000,000 per month in new money' or 'almost $20,000,000 in direct economic impact over a six month run' for that city and the State.
Attached to the affidavit of Ms Beattie, sworn on 18 July 2011, is a copy of an email received from the Vice-President/Managing Director of Disney following consultation by the Council in accordance with section 54 of the GIPA Act. In that response, the Vice-President/Managing Director said the following:
'The original sponsorship proposal put by us was provided to the Council on the basis that it was commercial in confidence.
Much of the information in that proposal sets out our confidential business strategy and would be extremely valuable to our competitors (especially in the very competitive environment of entertainment dollars). The value to us of retaining our confidential strategies is so great, the potential damage to the production and the goodwill of the Walt Disney Company would be incalculable.
Furthermore, the contents of the proposal were provided to assist Council in forming a view about the production. Once the decision to sponsor production was taken, our confidential and valuable business strategists have no part in, or bearing on, the sponsorship agreement.
As regards the terms of the sponsorship agreement, we understood it was Council's policy to keep sponsorship/partnership arrangements confidential and we agreed to proceed accordingly. However, we would have no objection to the disclosure, should it be deemed necessary to do so.'
The first question is whether the disclosure of the redacted information in the 'evaluation' column of Attachment B 'could reasonably be expected to' to have the nominated affect as asserted by the Council. As I have explained the asserted affects are those set out in item 4(c) and (d) of the table in section 14 of the GIPA Act (i.e. diminish the competitive commercial value of that information to Disney, or prejudice the legitimate business, commercial, professional or financial interests of Disney or the Council).
The words 'could reasonably be expected to' have been the subject of judicial consideration in the context of the Commonwealth Freedom of Information Act 1982 (Cth) and the repealed Freedom of Information Act 1989 (NSW): see Leach v Sydney Water Corporation [2010] NSWADT 298 at [25], Neary v State Rail Authority [1999] NSWADT 107, Attorney-General's Department v Cockcroft (1986) 10 FCR 180 at 190. In Cockcroft, Bowen CJ and Beaumont J said that the words -
'... require a judgment to be made by a decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect ... It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.'
In Leach, Judicial Member Montgomery said the following:
' ... The words have their ordinary meaning: Searle Australia Pty Limited v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approach from the viewpoint of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC.'
The Tribunal has construed these words, as they appear in the GIPA Act, to have a similar meaning and application: see McKinnon v Blacktown City Council [2012] NSWADT 44 at [40] to [44] and Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 at [41] and [42].
Having regard to the content of the redacted information and the content of confidential exhibit AB-1 to the affidavit of Ms Beattie, I am satisfied that the redacted information in Attachment B is information concerning Disney's legitimate business and commercial interests, which was provided in confidence to the Council for the purpose of assessing Disney's sponsorship proposal. I am also satisfied, on the basis of the evidence of Ms Beattie and the response of Disney, that if the information were to be disclosed, it could reasonably be expected to (a) diminish the competitive commercial value of the information to Disney, and (b) prejudice Disney's and the Council's legitimate business and commercial interests. That is, on the material before me, I am satisfied that the public interest consideration listed in item 4(c) and (d) of the table in section 14 of the GIPA Act has been established.
The question is whether this public interest consideration against disclosure, on balance, outweighs the public interest in favour of disclosure (section 13 of the GIPA Act). In my opinion, they do. As pointed out by the Council in its submissions, there is no general public interest in knowing the specific details of Disney's business strategies for its musical. There is however, a general public interest in knowing the criteria against which the Disney proposal was assessed and rated by the Council in reaching its decision. To the extent Attachment B contains such information, this has been disclosed to Mr Woodhouse. What has not been disclosed is the information, provided in confidence, which is of a competitive commercial value to Disney and if disclosed could reasonably be expected to diminish that value and prejudice its legitimate business and commercial interests.
On the basis of the evidence of Ms Beattie and the contents of Attachment B and Attachment C, I also accept that sponsorship of major events involving use of Council's facilities and services is part of Council's legitimate business and commercial interests. Even though these interests are exercised for the benefit of the community, they are nevertheless legitimate business and commercial interests.
Accordingly, I find that the decision of the respondent in regard to the redacted information in Attachment B is the correct and preferred decision.
Attachment C
Attachment C is a two-page document. Ms Beattie in her evidence explained that this Attachment contained the Committee's recommended sponsorship package for the Disney event. It is also the package that was subsequently agreed to by the Council.
The first page of the Attachment is a cover page and it has been provided to Mr Woodhouse. It is the second page, which has been provided with a number of redactions. The information on this page is made up of three introductory paragraphs and two small tables. The last 2½ lines in the last paragraph of the introductory paragraphs have been deleted (not disclosed). In my view, there is no basis to claim that there is a public interest consideration against the disclosure of this information as, in substance, the information that is already known. It was contained in the Council's press release, of 27 October 2011, when announcing the sponsorship of the Disney musical. It is also mentioned in the report of the Committee (see paragraph 2 above).
The first table contains a description of four sponsorship benefits to Disney and the sponsorship value amount for each benefit. The total sponsorship value amount is at the end of the table and has been disclosed (i.e. $100,058). Minor deletions have been made in the description of each sponsorship benefit and the sponsorship value amount against each benefit has been deleted. The deletions in the descriptions of each benefit, is information, if disclosed, that would identify the basis on which the sponsorship value of that benefit has been calculated, or information provided by Disney, in confidence (i.e. the same information that is contained in the redacted information in Attachment B).
The second table contains a description of four sponsorship benefits to the Council. The only deletion in this table is the description of the first benefit.
Again the issue is whether, the disclosure of the deleted/redacted information in these tables in Attachment C 'could reasonably be expected' to (a) diminish the competitive commercial value of the information to Disney or the Council, and (b) prejudice Disney's or the Council's legitimate business and commercial interests (item 4(c) and (d) of the table in section 14 of the GIPA Act).
As I have already mentioned, it is the evidence of Ms Beattie that Sydney and Melbourne compete in attracting major events to their cities. They do so by offering sponsorship to selected events. Such sponsorships are of mutual benefit to the Council, the community and the promoters/producers of these events. It is the evidence of Ms Beattie that disclosure of the details of this sponsorship package (i.e. specific details as to how the Disney sponsorship package has been calculated and made up) will give a competitive advantage to future requests for sponsorship by other producers of major musical events. It would also give Melbourne, Sydney's major competitor, a competitive advantage and the ability to 'outbid' that which Sydney is able to offer and at the same time maximising the return to the community without a further impact on the Council's funds and revenue.
As I have stated, I accept that sponsorship of major musical events is part of Council's legitimate business and commercial interests. Accordingly, having regard to the deleted material and the evidence of Ms Beattie, I am satisfied that the deleted material in the tables of Attachment C, if disclosed, could reasonably be expected to (a) diminish the competitive commercial value of the information to the Council, and (b) prejudice the Council's legitimate business and commercial interests. In some cases the deleted information is also information concerning the legitimate business and commercial interests of Disney and its disclosure could be expected to have the same effect on those interest.
Accordingly, with one exception, I am satisfied that the Council has established that there is a public interest against disclosure of the deleted/redacted information in Attachment C.
Again, the next question is whether this public interest consideration against disclosure, on balance, outweighs the public interest in favour of disclosure (section 13 of the GIPA Act). I have considered this question in regard to each deletion in the tables in this Attachment. In my view, with one exception, the public consideration interest against disclosure is an overriding one.
In reaching this conclusion I have taken into account the public interest considerations raised by Mr Woodhouse. As he pointed out there is a strong public interest in the public being informed about how the Council expends its funds, regardless of whether it is in the form of value-in-kind or revenue forgone. In my view, this interest is satisfied in that the information as to the nature of the sponsorship and its total value has been disclosed. On the other hand, disclosure of the specific values of each item within the sponsorship package and the basis on which the values were calculated, could reasonably be expected to effect the business and commercial interests of the Council and as a consequence adversely effect the community in regard to major events being hosted in Sydney.
In regard to the exception I have referred to in paragraph 47 above, I am not persuaded that the public interest consideration against disclosure in regard to the descriptive words in the deletion in the second table is an overriding one. That is, to the extent this deletion describes the nature of this particular sponsor benefit, I cannot see how it differs to that contained in the other descriptions in this table. However, in regard to the remaining information at the commencement of this description, I find that the public interest consideration against the disclosure of this information is an overriding one.
In light of my findings, the appropriate decision is to vary the decision of the Council in regard to the deletions on page 2 of Attachment C, so as to exclude the deletions in the third paragraph of the introductory paragraphs and that part of the deletion in the second table, which is information describing the nature of the sponsor benefit.
Costs
The Tribunal's power to award costs is set out in section 88 of the ADT Act. It is well accepted that the general rule in regard to costs under section 88 is that each party is to pay its own costs (see subsection 88(1)). The exception to that rule is where the Tribunal is satisfied that it is fair to award costs having regard to the matters set out in subsection 88(1A). These are as follows:
'(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:
(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or
(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or
(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or
(iv) causing an adjournment, or
(v) attempting to deceive another party or the Tribunal, or
(vi) vexatiously conducting the proceedings,
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
(d) the nature and complexity of the proceedings,
(e) any other matter that the Tribunal considers relevant.'
Even where a party seeking costs establishes one of the matters set out in paragraphs 88(1A)(a) to (e), the power to award costs is discretionary.
In my view Mr Woodhouse has not established any of the grounds justifying a departure from the general rule as to costs set out in subsection 88(1). His application is primarily based on having success, in a substantial part, in his application. It is well established that this will not, of its own, give rise to a departure from the general rule. Accordingly, Mr Woodhouse's application for costs should be refused.
Orders
For the reasons set out above, I make the following orders:
(a) The decision of the Council in regard to the deletions in Attachment B is affirmed.
(b) The decision of the Council in regard to the deletions in Attachment C is varied in accordance with my findings in paragraph 50 of these reasons for decision.
(c) Mr Woodhose's application for costs is refused.
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Decision last updated: 22 May 2012
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