Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jojeni Investments Pty Ltd v Port Macquarie-Hastings Council [2022] NSWCATAD 327 Hearing dates: 24 June 2022 and on the papers Date of orders: 7 October 2022 Decision date: 07 October 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: M Riordan, Senior Member Decision: The applicant's application for costs is dismissed. Catchwords: ADMINISTRATIVE LAW – costs – whether there are special circumstances warranting the award of costs – whether it is appropriate to exercise the discretion to award costs Legislation Cited: Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997 Government Information (Public Access) Act 2009 Cases Cited: X and AY v Wesley Dalmar [2008] NSWADT 231 Alexander James Pty Ltd v Pozetu Pty Ltd (No. 2) [2016] NSWCATAP 75 at [14] Australian Industrial Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia & Ors (2001) 188 ALR 653 at 659; [2001] FCA 774 Chester v Prestige Promotions Pty Ltd [2014] NSWCATAP 34 Cleverley v Harness Racing New South Wales (No 2) [2022] NSWCATAD 160 Cripps v G & M Dawson Pty Ltd [2006] ANZ Conv R 350; [2006] NSWCA 81 Grasso v The Owners Strata Plan No. 52399 [2022] NSWCATAP 91 Hamod v New South Wales (2002) 188 FCR 659; (2002) 188 ALR 659; [2002] FCAFC 97 Nguyen v Perpetual Trustee Company Ltd; Perpetual Trustee Company Ltd v Nguyen [2015] NSWCATAP 264] Oshlack v Richmond River Council (1998) 193 CLR 72; (1998) 72 ALJR 578; (1998) 152 ALR 83; (1998) 96 LGERA 173; [1998] HCA 11 Re Minister For Immigration and Ethnic Affairs; ex Parte Lai Qin (1997) 186 CLR 622; (1997) 71 ALJR 533; (1997) 143 ALR 1; [1997] HCA 6; (1996) 186 CLR 49 The Owners - Strata Plan No 63731 v B and G Trading Pty Ltd (No 2) [2020] NSWCATAP 273 WorkCover Authority (NSW) v Law Society of NSW (2006) 65 NSWLR 502; [2006] NSWCA 84 Texts Cited: None cited. Category: Costs Parties: Jojeni Investments Pty Ltd (Applicant) Port Macquarie-Hastings Council (Respondent) Representation: Solicitors: Hones Lawyers Pty Ltd (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2022/00051780 Publication restriction: Nil REASONS FOR DECISION BACKGROUND 1. This is an application by Jojeni Pty Limited (the applicant) for an order that Port Macquarie-Hastings Council (the respondent) pay its costs of the proceedings pursuant to s 60 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act). 2. The substantive proceedings were commenced on 22 February 2022, in which the applicant applied for administrative review of decisions made by the respondent under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) on 18 November 2021 and 21 December 2021, respectively. 3. The substantive dispute was resolved at the commencement of the hearing on 24 June 2022 and the Tribunal entered consent orders. 4. However, the applicant applied for an order that the respondent pay its costs of the proceedings. Dispensing with the hearing 1. As the substantive dispute had resolved, I set a timetable for the filing and service of evidence and submissions and ordered that the costs application be determined on the basis of the written material without the need for a hearing. 2. Section 50 of the NCAT Act provides: 50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except: … (c) if the Tribunal makes an order under this section dispensing with a hearing, or … (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. … 1. The parties consented to the application being determined on the papers and I am satisfied that the issue can be adequately determined in the absence of the parties by considering their written submissions and that conducting a hearing would put them to unnecessary expense. Therefore, I dispensed with a hearing pursuant to s 50(2) of the NCAT Act. Applicable legislation 1. Section 60 of the NCAT Act applies to costs and 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. 1. Section 36 of the NCAT Act provides: 36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it— (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal— (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions. 1. As can be seen from the terms of subs 60(1) of the NCAT Act, the starting point in an application for costs is that each party pay its own costs. Subsection 60(2) gives the Tribunal discretion to award costs if it is satisfied that there are "special circumstances warranting the award of costs." That is, even if the Tribunal is satisfied there are special circumstances, the Tribunal must also be satisfied that such circumstances warrant an award of costs. 2. Subsection 60(3) specifies the matters to which the Tribunal may have regard when considering whether or not special circumstances exist. 3. The expression "special circumstances" was considered by the Court of Appeal in the context of section 88(1) of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) (s 88 of the ADR Act being comparable to s 60 of the NCAT Act). In Cripps and Another v G & M Dawson Pty Ltd and Another; G & M Dawson Pty Ltd and Another v Cripps and Another [2006] NSWCA 81 Santow JA, with whom Mason P and Brownie AJA agreed, held at [60]: On the one hand, the Tribunal correctly concluded that the respondent, through no fault of its own, has been placed in the situation where it has been forced to pursue this litigation. Yet it still failed to find special circumstances. With respect, I consider that the Tribunal was in error in failing to conclude that special circumstances here applied. For this purpose, it suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional. While a finding of "serious unfairness" is not prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration. The Applicant's case 1. The applicant argues to the effect that the respondent's actions in this matter give rise to 'special circumstances', which warrants an award of costs. 2. The applicant relies upon a statement of John Harvey, director of the applicant, dated 22 June 2022. He said that he lodged a GIPA application with the respondent on 28 October 2021, seeking information in relation to a proposal by the respondent to access land owned by the applicant for the purposes of constructing a sewer trunk line across it in order to provide sewerage services to neighbouring landowners (the sewerage proposal). He said that the respondent informed him that it received advice that it could lawfully access the land for this purpose without the applicant's consent. 3. Mr Harvey expressed his belief that the Mayor of the respondent had a personal relationship with the neighbouring landowner's family and he became concerned that the respondent had not followed the proper process in determining the sewerage proposal. He therefore sought the documentation that justified that determination. 4. However, on 28 October 2021, the respondent asked him to narrow the scope of the GIPA request, which he did, and he submitted a revised GIPA request on 29 October 2021. 5. On 18 November 2021, the respondent released documents that it considered to be within the scope of the revised GIPA request. However, it did not release the legal advice (that it relied upon) or supporting documents regarding the sewerage proposal, although he knew that the respondent held these because its staff had previously referred to them. 6. On 9 December 2021, Mr Harvey requested an internal review of the GIPA decision. However, on 21 December 2021, the respondent affirmed its decision not to release any further documents. Accordingly, on 22 February 2022, he lodged the current application for administrative review with the Tribunal. 7. On 21 March 2022, the Tribunal remitted the matter to the respondent for reconsideration. 8. On 5 April 2022, the respondent decided to release a redacted version of the legal advice, but it did not release the documents prepared by King and Campbell Pty Limited (the King and Campbell documents) which were referred to in the legal advice. 9. On 26 April 2022, the applicant informed the Tribunal that the respondent's further decision "remained insufficient" and pressed the application for administrative review. 10. At a directions hearing on 10 May 2022, the respondent's solicitor requested an additional period of 28 days in order to consult with King and Campbell Pty Limited. However, Mr Harvey alleged that King and Campbell Pty Ltd had previously disclosed that it had no objection to the release of the information. The Tribunal allowed the respondent a period of 7 days to make enquiries about whether that company wished to be joined to the current proceedings. 11. On 17 May 2022, at a further directions hearing, the respondent's solicitor made no reference to King and Campbell Pty Ltd joining the proceedings, but sought an extended period of time for the filing of evidence - although it had not provided any documents required by s 58 of the ADR Act. The Tribunal set a timetable and listed the matter for hearing on 24 June 2022. 12. On 10 June 2022, the applicant's solicitors sent a letter to the respondent's solicitors asking them to provide any relevant documents in accordance with the Tribunal's orders. They sent a further letter on 15 June 2022, advising the respondent's solicitors that they were a week overdue in complying with the Tribunal's orders. 13. On 17 June 2022, the respondent's solicitors advised the applicant's solicitors that the respondent did not intend to file any documents and that there was no need for a hearing. However, in response, on 18 June 2022, the applicant's solicitors sent a letter to the respondent's solicitors, reminding them of their obligations under s 58 of the ADR Act and stated that a hearing would be necessary because the applicant "cannot know whether the unredacted legal advice, or the King and Campbell documents refer to further additional documents that should be disclosed". 14. On 21 June 2022, the respondent produced a Statement from Ms K Callander, Governance and Legal Officer for the respondent, which conceded that the previous decisions not to release the information were incorrect and that she decided that the King and Campbell documents were within the scope of the GIPA request and would be released. 15. On 22 June 2022, the respondent's solicitor sent a letter to the Tribunal confirming that the unredacted legal advice and the King and Campbell documents were to be released to the applicant and that there would not be any need for a hearing. 16. However, Mr Harvey alleged that the respondent was only prepared to release these documents if the applicant agreed not to seek a costs order and that the respondent's letter did not address "the applicant's justification as to why a hearing was still required". 17. Mr Harvey then set out, at considerable length, his allegations of improper conduct by the respondent with respect to the sewerage proposal. Those matters are not relevant to either the administrative review of the decision under the GIPA Act or the current application for costs. However, Mr Harvey attempted to make them relevant by alleging: 32. The above circumstances, and specifically the inappropriate involvement of the Mayor in this matter and the unprecedented intervention by Council, also explains the reluctance of the respondent to release the relevant documents. 1. In relation to "special circumstances", Mr Harvey alleged that the respondent had conducted the proceedings in a way that unnecessarily disadvantaged the applicant. He expressed the view that the respondent should have released the unredacted legal advice and the King and Campbell documents in response to the GIPA request and that if it had done so, there would not have been any need for these proceedings. He again complained about the respondent's failure to comply with its obligations under s 58 of the ADR Act and stated that if it had complied with its duty and provided the relevant documents to the Tribunal, it is "likely that the proceedings could have been dealt with much earlier because the real issues – and the lack thereof – would have become known to the Tribunal". 2. Mr Harvey alleged that the respondent sought to unreasonably delay the release of the documentation on false pretences. He argued that an example of this was its solicitors requesting a 28 day extension of time to consult with King and Campbell about releasing information, when the relevant report indicated that consultation had occurred and there was no objection to the release of the information. He also argued that the respondent's conduct in producing Ms Callander's statement only two days before the hearing was "contemptuous of the Tribunal, has left the applicant at a disadvantage as there is inadequate time for the preparation of a detailed response." 3. Mr Harvey also asserted that the respondent unreasonably prolonged the time taken to complete the proceedings and said that the matter could have concluded much sooner if the respondent had complied with its obligations under s 58 of the ADR Act. 4. Mr Harvey also argued that the respondent's decision not to release the unredacted legal advice and the King and Campbell documents was "misconceived". He stated, relevantly: 43. There is established precedent in Tribunal proceedings that in circumstances where a parties' (sic) is so weak as to be 'relatively unassailable' then special circumstances for the award of costs are said to exist: Chester v Prestige Promotions Pty Ltd [2014] NSWCATAP 34. In that case, analogous to the present proceedings, the Tribunal had afforded a party the opportunity to put on evidence, but that opportunity was not "availed of in a manner that assists the Appeal Panel": at [35] 44. it is my submission that the respondent's case was so weak as to be relatively unassailable and entirely lacking in substance – a position confirmed by the capitulation of the respondent. The fact that the respondent has reached that conclusion two days before the hearing makes it no less so, and only further serves to disadvantage the applicant by causing it to incur unnecessary costs. 1. Mr Harvey also alleged that the respondent expressly refused to comply with the Tribunal's orders made on 17 May 2022 and that if its position was that no evidence was to be filed, its solicitors should have communicated that on 7 June 2022. The Respondent's case 1. The respondent filed written submissions on 19 July 2022 and also relied upon a statement of Carlo Zoppo, its solicitor, dated 18 July 2022. 2. Mr Zoppo stated that on 27 May 2022, he telephoned Mr Cole (the applicant's solicitor) in order to discuss a resolution of the matter, but Mr Cole advised him that he was going into a meeting and that he would call him back later in the day. However, Mr Cole did not call him back. 3. Mr Zoppo also stated that on 1 June 2022, he left a voicemail message for Mr Cole to contact him, but he did not receive any response and on 2 June 2022, he sent Mr Cole an email asking him to return his calls. Shortly afterwards, Mr Cole called him and they discussed the respondent's proposal. He then sent Mr Cole an email setting out the terms of the respondent's "without prejudice" offer. 4. On 6 June 2022, Mr Cole called him to discuss the options to resolve the matter. Mr Cole stated that the applicant would discontinue the proceedings if the respondent paid "a nominal amount of costs in the order of $10,000.00." 5. On 8 June 2022, Mr Cole sent him an email following upon on the phone call of 6 June 2022. Later that day, Mr Zoppo sent him an open email, stating that the respondent was prepared to release the documents and that this would remove the only matter in dispute, so that there was no need to proceed to a hearing. He also stated that the respondent would resist an application for costs. 6. On 10 June 2022, Mr Cole responded to Mr Zoppo's email and "suggested" that the respondent had not provided any comfort that all relevant documents had been disclosed and that if the matter proceeded to a hearing, the applicant would seek indemnity costs. Mr Zoppo replied to Mr Cole's email that day and repeated the respondent's position on the matter. 7. Mr Zoppo stated, relevantly: 20. On 17 June 2022, I sent an email to Mr Cole. I understood that Mr Cole had told the Tribunal on the 17 May 2022 that the dispute was limited to two paragraphs in the redacted legal advice. This was said in the context of a discussion as to how much time should be allowed for the filing of evidence. I did not appear on 17 May 2022 but relied on what I was told by my colleague Anzer Khan who appeared before Senior Member Ransome. I told Mr Cole that if that was the only issue and the Council had decided to consent to orders approving the release, then the Council did not intend to file any other evidence and would advise the senior member of its consent to disclose the remaining documents. I stated that accordingly there was no need for hearing and no need for evidence. I asked Mr Cole to confirm that the Applicant's position in terms of issues had not changed. 21. Mr Cole replied on the same day reciting the orders of the Tribunal and suggesting that we provide the relevant documents are required. He stated that for all the applicants know, the release of that information may identify further documents that should be disclosed. He communicated his instructions to proceed to a hearing and stated that his email would be relied upon in seeking costs. 22. I replied on the same day repeating the content of my email earlier that day and also stating" 22.1 shortly after the directions hearing the applicant was advised that the Council decided to release the remaining documents in dispute; 22.2 I would write to the Tribunal and advise the Tribunal of the Council's position; 22.3 Mr Cole did not indicate any change in the applicant's position and I worked on the assumption that the position remained the same; 22.4 that the orders actually made were markedly different to the orders recited by Mr Cole in his email; 22.5 in response to the applicant's instructions to Mr Cole to proceed to a full hearing, the Council had since early June made it clear that it will consent to the Tribunal making orders to release the dispute(d) material. I asked why the Tribunal would need to have a full hearing when the Council was prepared to release the documents; 22.6 the Could would resist any application made with respect to costs and if the applicant insisted on a full hearing when there were no issues in dispute, such conduct would amount to prolonging unreasonably the time taken to complete the proceedings; and 22.7 the Council again invited the applicant to consent to orders sought by the Council and bring the matter to an end without any further costs or delay. 23. On 18 June 2022 Mr Cole emailed me stating: 23.1 my reference to "shorter dates" was a mischaracterisation; it was the Council who sought an extension to the usual period required for filing evidence; 23.2 the applicant's position was that there was no valid justification for the extended period of time for evidence; 23.3 the applicant did not agree that the only remaining documents were the King and Campbell documents and the redacted legal advice because the applicant did not know if those documents identified additional documents that should have been disclosed; the applicant could not know this until the Council provided the documents and for that reason, the full hearing needed to remain on foot; 23.4 if the Council released the documents and they did not identify any additional documents then the applicant would not press for a full hearing, but instead only request to be hard on the matter of costs; and 23.5 an allegation that the Council had not complied with orders 1 or 2 of the Tribunal's interlocutory orders. 1. Mr Zoppo stated that on 21 June 2022, Ms Callander prepared a statement, which provided evidence of reasonable searches that were conducted with a view to providing some comfort to the applicant . He filed and served this statement that same day. However, on 24 June 2022, Mr Cole emailed him a copy of Mr Harvey's statement, which forms the basis of the current claim for costs. 2. In its written submissions, the respondent referred to the decision of the Appeal Panel in Grasso v Owners of Strata Plan No 52399 [2022] NSWCATAP 91, which set out the established principles concerning an award of costs in special circumstances, as follows: 12. Certain principles have been established concerning an award of cost as follows: (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.": Santow JA in Cripps v G & M Mawson [2006] NSWCA 84 at [60] in relation to s 88 (1) of the Administrative Decisions Tribunal Act 1997, which, by analogy, is a useful statement applicable in this Tribunal; (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.": See Alexander James Pty Ltd v Pozetu Pty Ltd (No.2) [2016] NSWCATAP 75 at [14]; (3) the nature and complexity of the appeal proceedings is the relevant consideration; not the nature and complexity of the proceedings at first instance: see Sahade v Owners SP No 62022 [2015] NSWATAP 225 at [38]; (4) the power to award costs is a discretionary power vested in the decision maker: see Re Minister for Immigration and Ethnic Affairs; Ex-Parte Lai Qin (1997) 186 CLR 62 at 622; [1997] HCA 6; (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": see The Owners – Strata Plan No 63731 v B&G Trading Pty Ltd (No2) [2020] NSWCATAP 273 at [13]; (6) an order for costs is intended to compensate the successful party: it is not intended to be punitive in nature: Oshlak v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72; Hamod v State of New South Wales (2002) 188 ALR 659; [2002] FCA 424; [2002] FCAFC 97; and (7) the discretion to award costs is to be exercised judicially: Nguyen v Perpetual Trustee Co Ltd [2015] NSWCATAP 264 at [94]. 1. The respondent argued that the applicant had not established the existence of special circumstances and noted that Mr Harvey "seems intent on discussing the merits of a decision that is not relevant to the Tribunal's consideration under the GIPA Act", namely the respondent's consideration of the sewerage proposal. It responded to each of the grounds raised by the applicant as follows: Ground 1 – The Council conducted itself in such a manner that unnecessarily disadvantaged another party. 16. There is no basis to support this ground. 17. There is nothing in the conduct of the proceedings that in any way disadvantaged the applicant. 18. The Zoppo Statement demonstrates that from early June the Council attempted to resolve the matter both in without prejudice discussions and discussions conducted in open correspondence. 19. The Council approached the applicant from late May 2022 in order to discuss its position and it was not until 2 June 2022 that the lawyers for both parties spoke about resolving the matter. It was apparent from 2 June 2022 that the Council was prepared to release the documents that remained in issue with the only issue then being any application of costs that the applicant sought to make. 20. Ms Callander, the Council officer who determined the reconsideration, explained in her statement the actions that took once aware that there was an alternative interpretation of the scope of the Applicant's GIPA application. She undertook a further search, located documents and identified those documents described as the "King and Campbell" documents. 21. The documents were identified to the applicant and the Council sought to consult with the owners of the documents, being King and Campbell. That was the purpose of the adjournment on 10 May 2022. Once the adjournment was granted consultation took place and the Council determined to release the documents shortly after the last directions hearing before the scheduled hearing date. 22. The Council conceded immediately and the only delay took place as a result of the applicant's actions. Ground 2 – Improper conduct of the Council 23. The applicant's evidence in Harvey Statement from paragraphs 28 – 30 are irrelevant matters for consideration in these proceedings before the Tribunal. The matters relate to the Council's consideration of the sewerage proposal. While we understand that the applicant is unhappy about the decision of the Council, it is not a matter that is relevant to the Tribunal's consideration of the GIPA Act application or this application… 25. The applicant's submissions at paragraphs 35, 36, 38 and 40 of the Harvey statement are dealt with in ground 6. In summary, the applicant's submission in this regard is misconceived as s 58 of the Administrative Decisions Review Act 1997 (ADR Act) does not apply to this matter. 26. The comments made by Mr Harvey at paragraphs 38 and 39 are dealt with at ground 4. Ground 3 – The Council is responsible for prolonging unreasonably the time taken to complete the matter 27. The proceedings were filed on 22 February 2002. 28. On 21 March 2022 the Tribunal remitted the matter for reconsideration. 29. On 5 April 2022 the matter was reconsidered by the Council and a fresh determination was made. 30. On 10 May 2022 the matter was before the Tribunal following the remittal and when it became apparent that some further documents may have been captured by the application, the Council sought to confer with the third party to see if there was an objection and if the third party wanted to be joined. 31. 31. On 27 May 2022, I attempted to speak with Mr Cole. That conversation took place on 1 June when the Council made the without prejudice offer to resolve the matter. 32. Between 1 June and 24 June 2022 the parties exchanged emails about whether costs should be paid or not and the matter was before Senior Member Riordan on 24 June 2022. 33. The above timeframe does not support a suggestion that the Council unnecessarily prolonged the proceedings. Ground 4 – Whether the proceedings were frivolous, vexatious or otherwise misconceived or lacking in substance 34. This ground under s 60 of the CAT Act is generally directed at the proceedings brought by an applicant rather than the manner in which such proceedings are defended. Section 55 of the CAT Act allows the Tribunal to dismiss proceedings that if this ground was made it would, which in this case would be the proceedings brought by the applicant if the Tribunal considers that the proceedings are frivolous or vexations or otherwise misconceived or lacking in substance. 35. To the extent that it is suggested that the Council's case was misconceived or lacking in substance, I repeat the Council's response to Ground 2. Ground 5 – The Council failed to comply with s 38 of the ADR Act 36. It is clear that s 58 of the ADR Act does not apply to matters under the GIPA Act. 37. This basis is misconceived. 1. Accordingly, the respondent argued that the applicant has not established special circumstances, which warrant an award of costs under s 60 of the NCAT Act, and that the application for costs should be refused. 2. On 25 July 2022, the Tribunal received the applicant's written submissions in reply and a statement from Mr M Cole, the applicant's solicitor, dated 22 July 2022. 3. I note that Mr Cole made assertions to the following effect: 1. The respondent withheld documents for an improper purpose. 1. This allegation appears to be based upon a statement made by the respondent's legal representative during a case conference that was conducted by Senior Member Ransome on 17 May 2022, to the effect that there was a disputed document and that there was some "Information in that that the Council did not want to reveal to the applicant at this stage". Mr Cole asserted that a Council not wanting to reveal information to an applicant at a certain point in time is not one of the public interest considerations against disclosure under the GIPA Act. 2. The respondent's determination of GIPA Application (was) made in error 1. Mr Cole asserted that in conceding her error (regarding the scope of the GIPA application), Ms Callander gave evidence that King and Campbell had already been consulted, which contradicts Mr Zoppo's evidence on this issue. 3. Respondent unnecessarily prolonging proceedings 1. Mr Cole referred to an extracted a conversation between Mr Zoppo and Senior Member Montgomery on 10 May 2022 concerning the respondent's request for further time in which to consult with King and Campbell Pty Limited. He argued that this was evidence that the respondent unnecessarily prolonged the proceedings. 4. Respondent's undertaking to provide documents under section 58 ADR Act 1. Mr Cole asserted that during the proceedings before Senior Member Ransome, Mr Khan (who appeared for the respondent) gave an express undertaking to provide documents under s 58 of the ADR Act and that the respondent failed to comply with that undertaking. 5. Respondent's failure to comply with orders 1. Mr Cole asserted that as a result of the respondent's failure to comply with the orders made by Senior Member Ransome, it did not have sufficient time to file and serve its evidence and it was only able to file and serve Mr Harvey's statement on 24 June 2022. 6. Disclosure of documents 1. Mr Cole argued that the disclosure of the unredacted legal advice demonstrates that the respondent unreasonably withheld the disputed documents from the outset. 2. Otherwise, Mr Cole annexed a Trust ledger dated 22 July 2022, and stated that the applicant had incurred legal costs of $22,734 to date. He asserted that the costs thrown away as a result of the respondent's conduct amounts to $18,000. 3. The applicant's submissions in reply largely repeat those set out in Mr Harvey's statement. However, the applicant agreed that s 103 of the GIPA Act excludes s 58 of the ADR Act from applying to these proceedings, but nevertheless argued that the respondent's failure to produce documents under s 58 of the ADR Act gives rise to "special circumstances" that warrant an award of costs. 4. I also note that while the applicant's submissions in reply take issue with Mr Zoppo's evidence about discussions between the legal practitioners after the case conference on 17 May 2022 and before the hearing date, Mr Cole's statement does not. No explanation has been provided for his failure to provide evidence about these matters. Consideration 1. The Tribunal may exercise its discretion to make an order for costs under section 60(2) when it is persuaded that special circumstances exist warranting an order for costs. 2. In this case, the applicant relies upon the following grounds under s 60(3) of the NCAT Act, which provide, relevantly: 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, (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), 1. A costs order is compensatory, not punitive. The costs power should not be used as a sanction to punish applicants for improper conduct or as a deterrent. However where one party forces its opponent to incur costs that would otherwise not have been necessary or reasonable, it may well be appropriate, regardless of any other circumstances, to award costs against the indulged party: AX & AY v Wesley Dalmar and ors [2008] NSWADT 231. 2. In relation to s 60(3)(a) of the NCAT Act, I reject the applicant's allegation that the statement made by the respondent's legal representative during the case conference on 17 May 2022 is evidence that the respondent withheld documents "for an improper purpose". 3. In my view, that statement must be interpreted in the context in which it was made, namely in the context of a case conference that was conducted after the respondent made its remittal decision. However, I do not intend to enter into a "he said" v "he said" debate between the parties' legal representatives about what was and was not said to Senior Member Ransome during that conference. 4. However, I note that the Senior Member made certain orders and that order 2 required the respondent to lodge copies of the disputed documents with the Tribunal "on a confidential basis". In my view, it is more probable than not that the respondent's legal representative's comments gave rise to the Senior Member making order 2 and that she considered that there may be issues of confidentiality that could require determination by the Tribunal. 5. It follows that I am not satisfied that the respondent unreasonably withheld the disputed documents "from the outset". In any event, the Tribunal entered consent orders that provided for release of those documents on 24 June 2022. 6. In relation to s 60(3)(b) of the NCAT Act, I reject the applicant's assertion that the respondent's solicitor's request for an extension of time in which to consult with King and Campbell Pty Limited is evidence that the respondent unreasonably prolonged the proceedings. In any event, I note that this directions hearing pre-dated the proceedings between Senior Member Ransome on 17 May 2022 and the remittal decision. I am therefore not satisfied that the applicant has established this ground. 7. In relation to s 60(3)(e) of the NCAT Act, I note that while the respondent conceded that its original decision was based on an error regarding the scope of the GIPA Application, that error was corrected by the remittal decision and the error was corrected by the remittal decision. 8. In my view, the fact that the respondent made an error, which it corrected and conceded having made in these proceedings, does not establish that the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance. In any event, I note that the applicant commenced the current proceedings and the suggestion that it should be awarded costs for proceedings that it considers to be "misconceived" is itself misconceived. 9. In relation to s 60(3)(f), I note Mr Cole's assertion regarding the undertaking made by the respondent's legal representative to provide documents under s 58 of the ADR Act. However, the applicant concedes that s 58 of the ADR Act does not apply to this matter due to s 103 of the GIPA Act. In my view, the suggestion that this undertaking was made demonstrates no more than the legal representative's lack of knowledge or understanding of the GIPA Act. By reason of s 103 of the GIPA Act, the undertaking would not have been enforceable in any event. 10. In my view, this probably explains why Senior Member Ransome did not make any order for production of documents under s 58 of the ADR Act. In any event, I find it difficult to understand how the applicant could have been disadvantaged by the respondent's failure to comply with a legislative provision that it concedes does not apply to this matter. 11. There is no dispute that the respondent failed to comply with orders 1 and 2 made by Senior Member Ransome on 17 May 2022. However, in my view, the applicant's assertion that it was therefore unable to file and serve its evidence is misconceived, because in administrative review proceedings conducted under the GIPA Act, the agency bears the onus of proving that it made the correct and preferable decision. In the absence of any evidence in support of its decision, the respondent would have been unable to discharge its onus and the applicant would not have been put to proof in the matter. 12. With respect the applicant's submissions that seek to dispute Mr Zoppo's evidence concerning the telephone discussions between the parties' legal practitioners from 17 May 2022 to 24 June 2022, I am satisfied that submissions are arguments that require evidence to support them and they are not evidence of the facts that they assert. In relation to this particular dispute, there is no evidence from Mr Cole that supports these particular submissions in reply. Conclusion 1. For the reasons discussed in this decision and based upon a consideration of all of the available evidence, I am not persuaded that special circumstances have been established for the purposes of s 60 of the NCAT Act. 2. In any event, if special circumstances were established, and they have not been established, this is not a matter in which I would determine that they warrant an order for costs and it is not a matter in which I would be inclined to exercise the Tribunal's discretion to make an order for costs. 3. While I can understand that the applicant would have preferred the matter to have resolved earlier in the proceedings, I am not satisfied that the applicant was disadvantaged, or was otherwise prejudiced, by any conduct on the part of the respondent. 4. In my view there should be no departure from the usual order under section 60(1) of the NCAT Act and the correct outcome is that there should be no order for costs. Order 1. The applicant's application for costs is dismissed. 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 October 2022