Mullett -v- Director General, Department of Education and Training & Anor (No.2) [2001] NSWADT 127

CITATION: Mullett -v- Director General, Department of Education and Training & Anor (No.2) [2001] NSWADT 127 DIVISION: General Division APPLICANT Christopher Steven Mullett PARTIES: RESPONDENT Director General, Department of Education & Training FIRST PARTY JOINED Robert John Randazzo FILE NUMBER: 003353 HEARING DATES: on papers SUBMISSIONS CLOSED: 07/20/2001 DATE OF DECISION: 08/06/2001

BEFORE: Robinson MA - Judicial Member APPLICATION: Costs MATTER FOR DECISION: Costs LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Mangoplah Pastoral Company Pty Ltd v Great Southern Energy (No 2) [2000] NSWADT 4 CASES CITED: Insley v State Electoral Commissioner & Ors (No 2) [2001] NSWADT 24 Lloyd v TCN Channel Nine Pty Ltd (No 2) [1999] NSWADTAP 7 Raethel v Director-General, Department of Education and Training [2000] NSWADT 56 APPLICANT In person REPRESENTATION: RESPONDENT K Sant, barrister FIRST PARTY JOINED In person ORDERS: 1 Application for costs be refused

1 This is an application by the applicant for costs pursuant to section 88 of the Administrative Decisions Tribunal Act 1997 ("ADT Act") relating to the main proceedings which I determined on 18 July 2001 (in [2001 NSWADT 119). Those proceedings relate to an application under the Freedom of Information Act 1989. At the hearing of that matter in March 2001, the applicant foreshadowed this application and I made provision permitting any such application and submissions to be made in writing within 14 days of the Tribunal's decision. 2 The applicant has made a written application for his costs in documents lodged with the Tribunal Registry dated 20 July 2001. The respondent has indicated in reply that determination of the application should be stayed pending resolution of an expected appeal in the main proceedings. 3 I do not consider the Tribunal should stay such a determination in these circumstances. 4 In his costs application, the applicant set out a detailed listing of the costs he incurred in mounting and running his case in this Tribunal. Including the costs of engaging a firm of solicitors to draw and file written submissions on his behalf, those costs total $9,791.78. In support of his application he argued, inter alia: "I believe there are substantial reasons for this claim for costs to be approved. In any form of proceedings against the Department of Education it has become obvious that the Department will vigorously pursue any avenue to prevent accountability or the disclosure of any documentation detailing an internal investigation. It is not possible for a simple member of the public to effectively challenge the Department of Education without substantial support from advisory council (sic). In the case in question, the information provided by my solicitors and subsequent barrister was instrumental in the success of the proceedings. The costs of such advice is substantial and not within the reach of the average member of public (sic). Therefore, the grant of costs in such a case and the opportunity for some of the expenses to be recouped removes a major barrier from such a case proceeding. In the interest of fairness I request this application for costs be approved." 5 Section 88 of the ADT Act provides: "(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) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs. (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." 6 In its consideration of this section from time to time, a number of principles and observations have emerged from the Tribunal. Parties to Tribunal proceedings should normally carry their own costs and the usual approach taken by courts of a successful party obtaining an award of costs does not apply - Mangoplah Pastoral Company Pty Ltd v Great Southern Energy (No 2) [2000] NSWADT 4 at [5], applied in Insley v State Electoral Commissioner & Ors (No. 2) [2001] NSWADT 24 at [16]. Further, the power to award section 88 costs is discretionary and the discretion is not lightly enlivened. There must be something within the circumstances of the case which would justify the awarding of costs - Lloyd v TCN Channel Nine Pty Ltd (No. 2) [1999] NSWADTAP 7 at [9]. It is not appropriate for the Tribunal to award costs against an unsuccessful respondent agency in order to punish it for poor administration - Raethel v Director-General, Department of Education and Training [2000] NSWADT 56 at [57] per President O'Connor, DCJ. 7 In the present case, I am not satisfied the applicant's arguments relevantly establish special circumstances warranting an award of costs. The applicant pointed to nothing sufficiently special or out of the ordinary in his submissions that would enliven the Tribunal's costs power here. Accordingly, I decline to make any orders as to costs or make any assessment as to the particular costs claimed. The application is refused.