Miriani v Commissioner for Fair Trading, Office of Fair Trading [2006] NSWADT 52

CITATION: Miriani v Commissioner for Fair Trading, Office of Fair Trading [2006] NSWADT 52

DIVISION: General Division

APPLICANT PARTIES: Joe Miriani RESPONDENT Commissioner for Fair Trading, Office of Fair Trading

FILE NUMBER: 053276

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 10/18/2005

DATE OF DECISION: 02/21/2006

BEFORE: O'Connor K - DCJ (President)

CATCHWORDS: Costs

MATTER FOR DECISION: Respondent's costs

LEGISLATION CITED : Freedom of Information Act 1989 Legal Profession Act 1987

Miriani v Commissioner for Fair Trading, Office of Fair Trading [2005] NSWADT 99 Druett v Director-General, Department of Community Services (GD) [2003] NSWADTAP 30 CASES CITED: Director-General, Department of Community Services v. Druett [2003] NSWCA 351 Alessa Pty Ltd v Total & Universal Pty Ltd [2001] NSWADT 150 Gizah Pty Ltd v AXA Trustees (No 2) [2001] NSWADT 164 Raethel v Director General, Department of Education & Training [2000] NSWADT 56

APPLICANT In person REPRESENTATION: RESPONDENT I Mescher of counsel instructed by A Wilson, solicitor, Office of Fair Trading

ORDERS: 1. Applicant to pay the respondent $1000 towards its costs of responding to the application

REASONS FOR DECISION 1 In earlier proceedings in this matter, the Tribunal made an order dismissing the applicant's application for review of a determination made by the respondent agency. The Tribunal also made an order for costs against the applicant. The applicant appealed. The Appeal Panel dismissed the appeal against the order dismissing the application. It upheld the costs appeal on procedural fairness. 2 The problem was that at the close of the original hearing, I had noted that there was a costs application against the applicant before the Tribunal, but I indicated to the parties that I would confine my decision to the dismissal application, and if the application was dismissed, give the applicant an opportunity to be heard on the costs application. I overlooked that indication in the course of making my decision, and dealt with both matters. Consequently the Appeal Panel set aside the costs decision and remitted the matter to the Tribunal for redetermination: order made 11 August 2005. 3 The Appeal Panel made directions for the filing of submissions, and directed that the matter be determined on the papers. The applicant for the costs order, the respondent agency in the proceedings ('the Commissioner'), lodged its submissions on 26 August 2005, and the respondent to the application, the applicant in the principal proceedings ('the applicant'), lodged his submissions in reply on 18 October 2005. 4 My original decision – Miriani v Commissioner for Fair Trading, Office of Fair Trading [2005] NSWADT 99 – included the following observations on the costs issue: '30 In anticipation of a possible finding of the kind now made, Mr Wilson who appeared for OFT applied for costs. The Act provides materially: ' 88 Costs (1) 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 there are special circumstances warranting an award of costs. (2) 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 Division 6 of Part 11 of the Legal Profession Act 1987 or on any other basis. (3) … (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Tribunal, and (b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.' 31 Almost invariably there are no applications for costs in General Division matters. It is rare for the Tribunal to make costs orders 32 The Tribunal has issued a Practice Note on this subject. The Practice Note No 12 gives the following circumstances as ones that may give rise to the conclusion that there are 'special circumstances' warranting a costs order: · whether a party has conducted the proceeding in a way that disadvantaged another party to the proceeding by conduct such as – …(vi) vexatiously conducting the proceeding · whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding · 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. 33 The Tribunal notes that the applicant is representing himself. In the Tribunal's opinion, it is apparent that he is an applicant of some sophistication. His documents reflect meticulous preparation, and are written in a fluent way. 34 At a planning meeting the applicant was warned that he might face a costs application if he pursued his application for review, in light of OFT's expressed position that it had fully responded to his access application. The applicant wrote to the Tribunal on 2 November 2004 after that meeting and said that the 'unexpected comments' by the Tribunal had 'caused me a certain degree of confusion and surprise as the issue of costs is not mentioned in any printed information relating to initial planning meetings'. He then noted part of the contents of Practice Note 12, and asserted that he was not aware of any special circumstances that might apply to his application for review. He proceeded to file substantial material, and appeared at the hearing on 7 December. 35 The applicant was put on notice at the planning meeting of the possibility of a costs application both by OFT and the Tribunal. The Practice Note refers clearly to the possibility that costs may be imposed where a respondent is exposed to an untenable claim. Moreover there are a number of readily accessible Tribunal decisions dealing with the circumstances where an order under s 88 might be made. 36 What sets this case apart from the many FOI cases where agencies have found themselves responding to difficult and persistent applicants is that the agency has consistently asserted that it has fully and properly responded to the request, and therefore the applicant's conduct is oppressive, in that the agency has done all it can do. 37 In the Tribunal's opinion, in this instance the agency has demonstrated that it has properly and fully dealt with the request, and there is no issue properly left to press. 38 The FOI Act confers important rights on citizens; and agencies allocate administrative resources to ensuring that those rights are respected. If agencies fully respond, claiming no exemptions, then they should have some protection from being called on to devote further resources to responding to the application. Those resources are being diverted from good applications. On the other hand, some applicants may have difficulty in appreciating that an agency has fully responded, and they perhaps should not necessarily therefore be made the subject of a costs order for pressing on to the Tribunal. 39 If a citizen continues to press an application in circumstances where it is reasonable to conclude that the applicant had enough understanding of the Act as to be likely to appreciate that the application was an empty one, then some sanction should be administered by the Tribunal. In the Tribunal's opinion, this applicant has engaged in distorted logic in an attempt to demonstrate that the REVS system, in particular, is some kind of repository of 'personal affairs' information or, more broadly, 'personal information'. The proposition is, in the Tribunal's view, simply unsustainable; and the Tribunal believes that the applicant is of sufficient sophistication to appreciate that. 40 In these circumstances there should be an order for costs. 41 OFT submitted a sheet referring only to the professional legal time caught up by this application. The sheet does not record, for example, disbursements and other expenses connected with the preparation of documentation. The total amount claimed for 15 hours' professional time is $3,370 using, as the index, the Crown Solicitor's Office charge-out rates. The Tribunal's understanding is that the legal officers involved in this matter are staff members of OFT, so that index seems to the Tribunal to have little or no relevance. 42 In my view, while the applicant has behaved in a way that warrants a sanction, in the circumstances an order to pay $1000 towards OFT's conduct is sufficient. This order will also, the Tribunal hopes, serve as a deterrent to future applications with similar characteristics.' Commissioner's Submissions 5 The Commissioner makes the following points: (i) his office fully and properly responded to the applicant's application; the applicant's application for review was oppressive in that the office had done all it could do (grant of full access) (ii) the applicant has continued to press his application in circumstances where it is reasonable to conclude that the applicant had enough understanding of the Freedom of Information Act as to be likely to appreciate that the application was an empty one (iii) the findings to the above effect made by the Tribunal on the first occasion should not be disturbed (iv) the Appeal Panel did not set aside the reasoning of the Tribunal in relation to the dismissal application that in substance the application was frivolous and vexatious; in effect those findings were confirmed (v) however, the Commissioner renews his application, not granted in full on the last occasion, for an order in the full amount originally sought, $3370, rather than the amount ordered by the Tribunal on that occasion, $1000. The Applicant's Submissions 6 The submissions commence by referring to s 88, and the Tribunal's Practice Note No 12 on costs. It then raises the question whether the Tribunal could be said, in light of its finding, to have jurisdiction. The point would seem to be that if the Tribunal found it was without jurisdiction in a matter it would then be disabled from exercising its power under s 88. It follows from my findings on the last occasion that the Tribunal was without jurisdiction, for the reason that there is no right to apply for internal review of a determination that fully responds to a request, and consequently there is no right to apply for external review by the Tribunal. The applicant submits, in similar vein, later in the submission that because he was an incompetent party (because of the absence of jurisdiction) he therefore does not fall within the meaning of 'aggrieved person', is not therefore a party and cannot be the subject of a costs order. 7 These considerations do not affect the operation of s 88. Section 88 relates to the conduct of 'proceedings' in the Tribunal. Proceedings may involve questions of jurisdiction or competence to sue. These were 'proceedings' in the Tribunal. 8 The submission then goes on to refer to the substance of my dismissal decision, and criticises aspects of the reasoning and some of the statements as to the factual position. These matters are, in my view, irrelevant. They could have, and may have been, agitated before the Appeal Panel. The Appeal Panel dismissed the appeal as to this aspect of the decision. 9 The submission then goes on to make some criticisms of the Appeal Panel's reasoning on the substantive questions. Again this is irrelevant to the issue presently before me for determination. The Tribunal is concerned with whether the applicant conducted his case in such a way that it is fair to conclude that 'special circumstances' sufficient to justify an adverse award of costs have been made out by the respondent. The final paragraphs of the applicant's submissions (21-34) turn to this matter. 10 The applicant refers to some cases where the Tribunal has dealt with submissions that an applicant has been 'vexatious' and should be required to pay the respondent's costs. He referred to the case of Druett v Director-General, Department of Community Services (GD) [2003] NSWADTAP 30 where the appeal declined to make an order for costs in circumstances where there was a finding that the application was without foundation; and the dismissal of an appeal against that decision by the respondent agency (the applicant for costs) by the Court of Appeal: Director-General, Department of Community Services v. Druett [2003] NSWCA 351. He also referred to the discussion of what might constitute 'vexatious' proceedings in Alessa Pty Ltd v Total & Universal Pty Ltd [2001] NSWADT 150 at [6]-[7]. The applicant then contends that there was no evidence presented by the Commissioner that he was in the habit of instituting or pressing legal proceedings without reasonable grounds. He also states that the agency never put forward any argument that the circumstances were seriously beyond the usual or ordinary pursuit of a claim (the formulation found in the paragraphs quoted from Alessa). 11 Each case will depend on its own circumstances. This point is made by the Court of Appeal in Druett at [4]: '[In] our opinion, the decision was no more than a decision in the particular case, and a case is not made out for the grant of leave to appeal.' 12 The applicant also refers to a statement in the Appeal Panel's reasons in these proceedings where the Appeal Panel said: 'It is common ground that the issues in dispute were canvassed at that planning meeting and the directions were made for the respondent to file and serve its material by 16 November and for the applicant to file its material in reply within a further fourteen days, that is by 30 November. The matter was then listed for hearing on 7 December.' 13 The applicant sees this statement as supporting the conclusion that there was nothing out of the ordinary about this case. He also submits, picking up a consideration that influenced the Appeal Panel in Druett's case that the burden imposed on the agency was a relatively limited one. 14 He does not acknowledge anywhere in these submissions that from the outset of the planning meeting process (which I chaired) the agency made submissions that it had done all that it could do to respond to his original access application. In my view it was no surprise that the agency then pressed a costs application for being put to the trouble of defending an empty application. Many of his submissions on this occasion in fact seek to take advantage of the Tribunal's conclusion that it was an empty application (the submissions to the effect that the absence of jurisdiction or of standing immunises a party from a costs order). 15 The applicant also submits that the costs order should not be used as a deterrent to individual applications (thereby alluding to my comment in the original decision at [42]). He refers to dicta in other costs decisions in the Tribunal where the Tribunal has indicated a reluctance to order costs against applicants because it might discourage other applicants, in a situation where the Tribunal routinely receives applications from persons who are unrepresented and who, often, are of limited means: citing Gizah Pty Ltd v AXA Trustees (No 2) [2001] NSWADT 164; and where the Tribunal has indicated that costs orders should not be used punitively: citing Raethel v Director General, Department of Education & Training [2000] NSWADT 56. 16 I agree with the views expressed in the various cases cited by the applicant, some being cases in which I presided. 17 Nonetheless in my judgment this was a case which should not have gone to hearing. In my view there was no justification for the applicant continuing to press the proceedings. I do see it as relevant to take some account of the apparent level of sophistication and understanding of the applicant. 18 As to the question of the amount of any costs order, the applicant endorsed my reasons where I questioned the appropriateness of having regard for the making of a costs order to an account for costs in respect of a salaried legal officer that uses the charge-out rate of the Crown Solicitor's Office. Conclusion 19 I have carefully considered the applicant's submissions, but in my view the conclusions that I reached on the previous occasion should be left to stand. As the Commissioner submits, the dismissal of the applicant's appeal on the substantive issue by the Appeal Panel adds extra strength to the conclusions that I reached on the previous occasion. 20 It is the case that the Tribunal and the Appeal Panel have been reluctant to impose costs orders on applicants in administrative review proceedings even where they have brought quite empty applications, and have not responded to submissions from the other party (and indications from the Tribunal) to that effect. I also think that the costs sanction should not be employed in a way that might deter individuals from initiating proceedings, especially on the administrative review side of the Tribunal's jurisdiction. Ultimately each case falls to be judged in light of its circumstances. 21 In this instance I remain satisfied that the applicant's conduct was such that there were special circumstances warranting the making of a costs order. 22 I capped the costs order at $1000 on the last occasion. The Commissioner, understandably, has renewed his submission that his full costs, as he measures them, be granted. I took a moderate approach on that matter on this occasion, noting that the legal officer is a salaried member of the Office of Fair Trading, and doubting whether a claim based on the charge out rate of a solicitor's office (here the Crown Solicitor) should be used as a benchmark. There was no response to these observations in the Commissioner's submissions on this occasion. I do not, of course, regard this as a closed discussion. However, I think the appropriate course on this occasion is simply to leave the order for costs at the same level as previously. Order 1. Applicant to pay the respondent $1000 towards its costs of responding to the application.