CITATION: McGuirk v Commissioner of Police, NSW Police [2007] NSWADT 119 DIVISION: General Division APPLICANT PARTIES: Michael (Gerard) McGuirk RESPONDENT Commissioner of Police, NSW Police FILE NUMBER: 063187 HEARING DATES: On the papers SUBMISSIONS CLOSED: 8 May 2007 DATE OF DECISION: 7 June 2007 BEFORE: Higgins S - Judicial Member CATCHWORDS: Costs MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Brooks Maher v Cheung [2001] NSWADT 18 Commissioner of Police, New South Wales Police Service v Brett [2002] NSWADTAP 34 Condor Assett Management Ltd v Excelsior Eastern Ltd [2006] NSWSC 510 Cripps v G M Dawson Pty Ltd [2006] NSWCA 81 CASES CITED: Gizah Pty Ltd v AXA Trustees Ltd (no.2) [2001] NSWADT 164 Hutchings Electrical v Director-General Department of Fair Trading (no.2) [2002] NSWADT 255 Raethel v Director-General, Department of Education & Training [2000] NSWADT 56 Transglobal Capital Pty Ltd v Yolarmo Pty Ltd 60 NSWLR 143 YG & GG v Minister for Community Services [2002] NSWCA 247 APPLICANT In person REPRESENTATION: RESPONDENT R Burdick, agent ORDERS: 1. The applicant's application for review is dismissed; 2. Applicant's application for costs is dismissed. REASONS FOR DECISION Introduction 1 This is an application for costs, by the applicant, in respect to his application for review of a decision of the respondent Commissioner of Police pursuant to the Freedom of Information Act 1989 ('FOI Act'). That decision related to a request for access to documents made by the applicant, on 19 March 2006 ('the FOI request'). When the respondent failed to determine the request within the 21 days prescribed under s.24(2) of the FOI Act, on 12 April 2006, the applicant made an internal review request in accordance with s.34 of the FOI Act. 2 When the respondent failed to determine the internal review request within 14 days as prescribed by s.34(6) of the FOI Act, on 2 May 2006, the applicant made an application to the Tribunal for external review. The matter first came before the Tribunal on 20 June 2006 at a planning meeting. At that meeting Ms Burdick, who appeared on behalf of the respondent, informed the Tribunal that the respondent had in fact made an internal review determination, and that it had been forwarded to the applicant within the required 14 days. She went on to say that all documents that came within the FOI request were provided to the applicant in full. The applicant however, insisted that he had not received an internal review determination in respect to his request, nor had he received any documents for which he had sought access. 3 On 21 June 2006, the Tribunal received a letter from Chief Inspector J. Scholz, Deputy Director, Compliance Law Division, Legal Services, NSW Police. In that letter Chief Inspector Scholz informed the Tribunal that Ms Burdick had been mistaken in the advice she had provided to the Tribunal at the planning meeting. She went on to advise that the internal review in respect to applicant's FOI request had been made on 16 June 2006, a copy of which was attached to the letter. Also attached was a copy of the documents found to fall within that request and for which access was granted. 4 It would appear that the applicant was not served with a copy of this determination and the documents attached thereto until 23 June 2006. 5 The matter next came before the Tribunal at a further planning meeting on 13 July 2006. At that meeting the applicant indicated that he was dissatisfied with the internal review determination in that he believed that the respondent held a number of additional documents which came within the scope of his FOI request. On the basis of these assertions, the Tribunal made directions in respect to the respondent's adequacy of search for documents. And on 26 July 2006, the respondent filed and served a supplementary internal review determination. In that supplementary internal review determination, the respondent indicated that additional searches had been made and as a result of those searches 19 additional documents had been located as coming within the terms of the applicant's FOI request. These, the respondent noted, included several documents which had in fact already been released to the applicant pursuant to earlier FOI requests that he had made. In respect to these additional 19 documents, the respondent determined to release all except one document being a COPS events report. 6 On 18 August 2006, at a directions hearing, the applicant advised the Tribunal that there were no remaining outstanding issues in respect of the respondent's determination of his FOI request. However, he indicated that in light of the respondent having caused him to incur unnecessary costs as a result of its failure to deal with his FOI request in accordance with its obligations under the FOI Act, he wished to make an application for costs. 7 In accordance with usual practice, the Tribunal made orders requiring the applicant to file and serve, on or before 25 September 2006, any evidence and submissions on which he relied in respect to his application for costs. The Tribunal also made an order that on or before 23 October 2006, the respondent was to file and serve evidence and submissions in reply. By consent, the Tribunal also made an order that the applicant's application for costs was to be determined on the papers. 8 On 6 December 2006, well outside the time frame provided for by the abovementioned orders, the applicant filed written submissions in respect to his application for costs. These submissions failed to identify the nature and amount of costs sought by the applicant who has at all times appeared unrepresented. Furthermore, there was no material on the Tribunal's file which evidenced the respondent having been served with a copy of these submissions. In light of this, at my direction, on 24 April 2007, the Registrar wrote to the parties informing them of these matters and directions that I had made in respect to the applicant filing evidence of the amount and nature of the costs sought (i.e. on or before 1 May 2007) and the respondent filing and serving submissions in reply (i.e. 8 May 2007). 9 It is apparent from the Tribunal's file that the respondent ultimately obtained a copy of the applicant's submissions on 30 April 2007. However, no further evidence or submissions have been filed by either party. Accordingly, this application for costs has been determined on the basis of the material that has been filed. Principles governing costs 10 The Tribunal has no inherent power to award costs, however it has been given such a power under s.88 of the Administrative Decisions Tribunal Act 1997 ('ADT Act'). It is a discretionary power that can only be exercised where the Tribunal is satisfied that there are 'special circumstances' warranting an award of costs. This means that in order to obtain a cost order an applicant has two hurdles to overcome. The first being able to identify 'special circumstances' and the second being able to show that the 'special circumstances' warrant an award of costs: see Gizah Pty Ltd v AXA Trustees Limited (No. 2) [2001] NSWADT 164 at [29]. 11 'Special circumstances' have been defined as 'circumstances that are out of the ordinary, but without having to be extraordinary or exceptional'. It is well established that mere success in a review application does not constitute special circumstances: see Brooks Maher v Cheung [2001] NSWADT 18 at [11] and Hutchings Electrical v Director General, Department of Fair Trading (No. 2) [2002] NSWADT 255 at [18]. In Brooks the Tribunal noted that while the circumstances which would or would not warrant an award of costs could not be exhaustively listed, an award of costs may be warranted '…where one party causes another party to incur costs because of unreasonable delays, or by making misconceived, frivolous, vexatious or insubstantial procedural or substantive applications'. 12 The power to order costs should not be used as 'some kind of sanction to punish agencies for poor administration', and the Tribunal should not embark on 'a general enquiry into the way in which the agency dealt with the Applicant': Raethel v Director-General, Department of Education & Training [2000] NSWADT 56 at [56] – [58]. 13 Practice Note 12 (reissued on 11 May 2005) identifies particular conduct of a party in the course of proceedings before the Tribunal which disadvantages the other party and which may constitute 'special circumstances' warranting an order for costs under s.88(1) of the ADT Act. That conduct is as follows: '… (i) failure to comply with an order or direction of the Tribunal without reasonable excuse; (ii) failing to comply with this Act, the regulations, the rules or enabling enactment; (iii) asking for an adjournment as a result of (i) or (ii); (iv) causing an adjournment; (v) attempting to deceive another party or the Tribunal; (vi) vexatiously conducting the proceedings; (vii) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings; and (viii) 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.' Applicant's Contentions 14 The applicant pointed out that his FOI request sought access to documents relating to a particular incident involving the applicant on the evening of Monday, 3 October and Tuesday, 4 October 2005 and in respect of which he made a complaint. That is, the request was specific and narrow. 15 The applicant submitted that in this application, the following matters constituted special circumstances warranting a cost order in his favour as follows: (a) The failure by the respondent to comply with its statutory obligations in regard to the determination of original application made for access to documents in accordance with s.17 of the FOI Act. (b) The failure of the respondent to comply with its statutory obligations in regard to the determination of application for internal review made in accordance with s.34 of the FOI Act. (c) The necessity, as a result of the above failures, for the applicant to commence legal proceedings in order to enforce the statutory rights conferred on him by the FOI Act, and the common law more generally. (d) The misleading of the Tribunal (whether as a result of incomplete and/or instruction or otherwise) by the delegated officer of the respondent, Ms Rebecca Burdick, in regard to the determination by NSW Police of the application made by the applicant at the planning meeting held on 20 June 2006. (e) The clearly incomplete 'internal review' determination made by Chief Inspector J. Scholz on 16 June 2006. (f) The necessity for the applicant to attend a further planning meeting on 13 July 2006 in order to ensure that the respondent fulfilled its obligations under the FOI Act, notwithstanding the determination made by Inspector Scholz on 16 June 2006. (g) The inference, which is clearly open to the Tribunal on the facts, that a major reason for the failure by the respondent to comply with its obligations under the FOI Act was to 'cover up corrupt conduct' by officers of NSW Police (whether by commission or omission) in respect of the incident which occurred on Monday, 3 October 2005. 16 In essence the applicant contends that the 'special circumstances' that warrant an order for costs are the respondent's failure to comply with the provisions of the FOI Act, which he asserts was perpetuated without justification when the matter came before the Tribunal. He goes on to suggest that these failures were motivated in order to 'cover up' 'corrupt conduct'. 17 The applicant also submitted that the decision of the NSW Court of Appeal in Transglobal Capital Pty Ltd v Yolarmo Pty Ltd 60 NSWLR 143 at [20], Cripps v G M Dawson Pty Ltd [2006] NSWCA 81 at [60] and Condor Assett Management Ltd v Excelsior Eastern Ltd [2006] NSWSC 510 at [8] was relevant to determining conduct that constitutes 'special circumstances' that warrant a cost order under s.88 of the ADT Act. 18 The applicant also relied on comments made, on 19 October 2006, by the Honourable Michael Gallacher, leader of the Opposition in the Legislative Council during the second reading debate on the Freedom of Information Amendment (Improving Public Access to Information) Bill. In particular, in regard to the respondent's poor record of compliance with its statutory obligations under the FOI Act. In the extract of what was stated, the Hon. Michael Gallacher made reference to a report by the NSW Ombudsman in respect to the respondent's compliance with its obligations under the FOI Act and comments made by the Tribunal in regard to the respondent's compliance. 19 Finally, the applicant contended that the circumstances of this application were not only special but they were also aggravating and on this basis he was entitled to indemnity costs. As mentioned above, there is no evidence before the Tribunal as to what costs are claimed by the applicant in respect to this application. Consideration 20 In my opinion, having regard to all the conduct of the respondent during the course of these proceedings it is arguable that this conduct constitutes 'special circumstances' warranting a cost order under s.88(1) of the ADT Act. 21 The FOI request on which this application was based was in the following terms: 1. Report prepared by Inspector Murray Reynolds in respect of the incident involving myself on the evening of Monday, 3 October and Tuesday, 4 October 2005, which was presented to the Newtown Local Area Command Complaints Management Teach (sic) (CNT) on Wednesday, 12 October 2005… 2. Minutes of the meeting of the CNT held on 12 October 2005 and 3. All memoranda, file notes and other materials relating to both the preparation of this report by Inspector Reynolds and its consideration by the CNT. 22 I agree with the applicant's submission that his request was very specific and narrow. Furthermore, they related to relatively recent events which concerned him personally. No explanation was provided by the respondent as to why it failed to comply with the statutory obligations under the FOI Act in respect to this request. At the same time the Tribunal notes that the applicant activated his rights, as he was entitled to do, in a prompt and timely manner and it was not until he lodged his application with the Tribunal that there was a response from the respondent. While this of itself would not constitute special circumstances, in this application the response that was initially made by the respondent was inadequate as not all relevant documents had been identified. The consequence of this was that the matter came before the Tribunal on two further occasions. Had the internal review determination of 16 June 2006 been a full response, there would have been no need for directions on 13 July and 18 August 2006. To that extent, the conduct of the respondent caused unnecessary delay in the resolution of these proceedings. As mentioned above, no explanation has been given for that delay. 23 Why the respondent failed to file and serve the internal review determination immediately after it had been made and before the first planning meeting, on 20 June 2006, has not been explained. This would have avoided Ms Burdick, who had not made the decision in question and who had not been provided with a copy when she appeared on behalf of the respondent at that planning meeting, incorrectly advising the Tribunal and the applicant on that day. 24 However, I am unable to make a finding to the effect that the respondent's conduct in this application constituted 'special circumstances' that 'warrants' the making of a cost order in favour of the applicant as the applicant has failed to put before the Tribunal any evidence of costs he has incurred as a result of the respondent's abovementioned conduct. That is, there is no evidence before the Tribunal as to what costs were incurred by the applicant on 13 July and 18 August 2006 when the matter came before the Tribunal at directions hearing. It is generally accepted that 'costs' in s.88 of the ADT Act relates to legal costs incurred by an applicant in pursuing his/her application before the Tribunal. As mentioned above, there is no evidence to indicate that the applicant incurred such costs in pursuing this application. Accordingly, the applicant's application for costs should be dismissed. 25 For completeness, the Tribunal also finds that there is no material before it to support the applicant's contention that the respondent's failure to comply with its obligations under the FOI Act was to 'cover up corrupt conduct'. The fact that the respondent failed to determine his FOI request as required under that Act does not of itself constitute a 'cover up' as alleged. Furthermore, the fact that the respondent did locate all the documents held by it which came within the applicant's FOI request and these, with one exception, were released to the applicant is conduct entirely inconsistent with such an allegation. Nor do the documents which were released to the applicant provide any support thereof. The Tribunal also noted that some of the documents that were released had already been released under an earlier FOI request made by the applicant. 26 Finally, the decisions of Transglobal Capital, Cripps and Condor Asset Management do not in my opinion assist in the determination of what constitutes 'special circumstances' for the purpose of s.88 of the ADT Act. Nor are the circumstances of this application such to give rise to an award of costs on an indemnity basis. Substantive Application 27 As mentioned above, on 18 August 2006 the applicant no longer sought review of the respondent's decision as he had obtained access to the documents sought. In light of this it is appropriate to order that the applicant's substantive application be dismissed. Orders 28 The Tribunal orders: 1. The applicant's application for review is dismissed 2. Applicant's application for costs is dismissed. 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.