Appeal Panel - Internal CITATION: Druett v Director-General, Department of Community Services (GD) [2003] NSWADTAP 30 APPELLANT PARTIES: Garry Keith Druett RESPONDENT Director-General, Department of Community Services FILE NUMBER: 029020 HEARING DATES: 30/06/2003 SUBMISSIONS CLOSED: 06/30/2003 DATE OF DECISION: 07/24/2003 Druett v Director-General, Department of Community Services 920020 NSWADT DECISION UNDER APPEAL: BEFORE: O'Connor K - DCJ (President); Goode P - Judicial Member; Bolt M - Member CATCHWORDS: costs - no question of law identified MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 023036 DATE OF DECISION UNDER APPEAL: 04/10/2002 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 CASES CITED: Citadin Pty Ltd (No 2) v Eddie Azzi Australia Pty Ltd & anor [2001] NSWADTAP 31 Charteris v General Manager, Leichhardt Municipal Council (No 2) [2001] NSWADTAP 39 APPELLANT REPRESENTATION: In person RESPONDENT A Johnson, solicitor ORDERS: Orders made on 30 June 2003; 1. Appeal dismissed.; 2. Respondent's application for costs dismissed.; 3. Appellant's application for costs dismissed. Ex tempore decision 1 On 10 April 2002 the Tribunal dismissed an application for review lodged by Mr Garry Druett on the ground that he was not a person who is aggrieved by a determination made by an agency or Minister under s 24 or s 43 of the Freedom of Information Act 1989 (FOIA) as required by s 53(1) of FOIA. The Tribunal also found that the agency has not made a determination under s 24 or s 43 because Mr Druett's application for documents made to the agency had not been accompanied by the required application fee as provided for in s 17 of FOIA. There was no appearance by Mr Druett at that hearing. 2 On 6 May 2002 Mr Druett lodged an appeal against that decision. The notice of appeal did not on its face identify any possible errors of law in the ruling of the Tribunal under appeal. The agency filed a reply on 14 May 2002 to that effect. It is not clear from the file why, but the appeal did not come on for hearing until 30 June 2003. Mr Druett has been the applicant in other matters in the Tribunal, one of which has already been dealt with by this Appeal Panel. The background to his litigation is a decision made by the agency to remove from his (and his wife's) care four children. Mr Druett has taken action in relation to that decision at all levels of the court system without success. The application for review, the subject of the present Tribunal jurisdiction, arose from a request for documents that related to the agency's investigations and actions leading to the removal of his children. 3 The Crown Solicitor, on behalf of the agency, provided the Appeal Panel with short informative submissions explaining the background to the decision under appeal. We agree with the fundamental proposition those submissions advance, and which commended itself to the Tribunal, that the requirement to pay the application free is mandatory (see s 17(c) of FOIA; see also Freedom of Information (Fees and Charges) Order 1989). 4 The agency had not made a determination on the request for documents at the time the proceedings were before the Tribunal on 10 April 2002. The Tribunal accepted the agency's explanation for not having done so, in particular that the required fee had not been paid. Therefore it was not a case of a deemed refusal, which would found the Tribunal's jurisdiction. Otherwise the Tribunal's jurisdiction is only founded if there has been a determination made in relation to the request, and there has been an internal review. Mr Druett at the hearing of the appeal acknowledged that no determination or internal review had occurred at that time. 5 According to Mr Druett, on 11 April 2002 the day after the decision, Mr Druett did pay the fee. The agency's record is that the fee was paid on 28 March 2002. In any event this information (that the fee was paid on 28 March 2002) does not affect the validity of the agency's action as at 10 April 2002, as 10 April 2002 was within the period allowed by FOIA for consideration of requests, and the point had not had been reached where a refusal might be deemed to have occurred. The request was subsequently actioned by the agency, and on 26 July 2002 approximately 150 pages of documents were released out of a total affected by the request, of 1500 pages (being 5 volumes of material extending over 10 years). 6 As the original decision of the Tribunal was clearly correct, the Appeal Panel made an ex tempore ruling dismissing the appeal. 7 There was then an application from the agency for the costs of the appeal. The agency submitted that the appeal was frivolous, vexatious and lacking in substance. The agency referred to the Appeal Panel decisions in Citadin Pty Ltd (No 2) v Eddie Azzi Australia Pty Ltd & anor [2001] NSWADTAP 31; and Charteris v General Manager, Leichhardt Municipal Council (No 2) [2001] NSWADTAP 39, dealing with the considerations that might justify the making of a costs order against an unsuccessful appellant pursuant to the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) s 88. Mr Druett made an application for costs as well. 8 The Appeal Panel dismissed the agency's application and Mr Druett's application, giving the following reasons ex tempore. Mr Druett and the agency have requested a written statement of reasons. The following text of the ex tempore reasons has been the subject of minor revisions. Applications for Costs 9 'The agency's application is made in light of the dismissal of this appeal. It is clear that the appeal had no foundation. The appellant himself acknowledges that he has not gone through the steps that are required before a matter can be brought to the Tribunal under the FOIA. It may be that he received some inaccurate information as to his rights. We are not in a position to make a finding on that matter. 10 The general principle is that costs are not awarded in proceedings in the Tribunal unless there are special circumstances. 11 We agree with the submission of Ms Johnson that the Tribunal has sought in various rulings to give an outline of what might amount to 'special circumstances' within the meaning of s 88 of the Tribunal Act at the Tribunal level or the appeal level, such as to warrant the exercise of the costs discretion in favour of the successful respondent, in this instance a respondent whose time has been, in their terms, wasted by the appeal. 12 The cases to which she refers were cases of some scale involving substantial attendances and substantial preparation of materials. 13 This is a case where the burden imposed by the appeal on the Department has been a relatively limited one. 14 Though we acknowledge simply - from the history of the proceedings that Mr Druett has brought in the Tribunal, and from what we have learnt in those proceedings about the other proceedings that he has brought over the original decision to remove his children - that he has been a very active litigant. We suspect the Department would not necessarily agree with my characterisation that its burden in any of these matters including the present one has been light. 15 But nevertheless, we have got to look at this case, to some extent, in isolation, and compare it with other cases in which we have made costs orders at the Appeal Panel level. This is not a case where there has been, as we see it, a substantial burden placed on the agency sufficient to justify departure from the usual principle that costs are not awarded in litigation in the Tribunal. There also needs to be some distinction, we think, drawn, in looking at our decisions, between the ones that are made on what we will call the civil disputes side of the Tribunal as compared to the administrative review side of the Tribunal. 16 The civil disputes side covers equal opportunity and retail leases disputes. 17 We think the Tribunal has shown more preparedness to intervene by way of costs orders there than on the administrative review side. 18 We are in the difficult situation of an appellant who is appearing unrepresented, is pursuing a cause of deep concern to him, and as best we understand, is of limited means. The Tribunal, to some extent, was set up with access objectives that sought to take account of those sorts of circumstances, without being unduly punitive as to costs. 19 So for those reasons, we would dismiss the costs application by the Department, though we understand the thinking that lays behind it. The costs application is dismissed. 20 As to your counter application for costs, Mr Druett, there is no material before us relevant to these proceedings which would justify giving it any further consideration, so that is dismissed as well.' 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.