Robinson v Commissioner of Police, NSW Police [2006] NSWADT 45

CITATION: Robinson v Commissioner of Police, NSW Police [2006] NSWADT 45

DIVISION: General Division

APPLICANT PARTIES: Michael Robinson RESPONDENT Commissioner of Police, New South Wales Police

FILE NUMBER: 053266

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 11/18/2005

DATE OF DECISION: 02/10/2006

BEFORE: Higgins S - Judicial Member

CATCHWORDS: Costs

MATTER FOR DECISION: Costs

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989

APPLICANT L Moffitt, Solicitor REPRESENTATION: RESPONDENT W Pisani, agent

ORDERS: The Applicant's application for costs is dismissed

REASONS FOR DECISION Background to costs application 1 Michael Robinson ("the Applicant") has made an application for costs in respect of his application seeking review of a decision of the NSW Police Service ("the Respondent") to refuse him access to documents that he had requested pursuant to the Freedom of Information Act 1989 ("the FOI Act"). 2 The Applicant's FOI request was made to the Respondent on 7 April 2005. In his request the Applicant sought access to medical files, worker's compensation files and other material that related to himself and which were held by the Respondent. On 11 May 2005, a designated officer of the Respondent made a determination in respect of the Applicant's FOI request ("the initial determination"). In that determination the designated officer stated that enquiries had been made with the Workers Compensation and Review Section of the Respondent and that he had been provided with all the relevant active files that were held by that Section including an investigation report concerning the Applicant. The designated officer went on to say that he had examined the material in the files and the investigation report and that he had determined to refuse the Applicant access to the investigation report and four statements by named officers of the NSW Police Service. The other documents were all released to the Applicant. 3 The grounds on which access was refused to the investigation report was stated to be cl.9 (internal working documents) of Schedule 1 of the FOI Act. Access to the statements was refused on the grounds of cl.13(b) (confidential information) in Schedule 1 of the FOI Act. 4 Following receipt of the initial determination of the Respondent, the Applicant sought internal review. That determination was made, on 4 July 2005, by another designated officer of the Respondent, the then Acting Deputy Director of the Compliance Law Division of the Legal Services Section of the Respondent ("the internal review determination"). In this internal review determination, the decision of the initial determination was confirmed. 5 The Applicant then lodged an application for external review with the Tribunal on 1 August 2005. That matter came before the Tribunal at a planning meeting on 30 August 2005, at which the representative for the Respondent agreed to file and serve any evidence on which it sought to rely together with any written submissions. The matter then came before the Tribunal for a further planning meeting on 19 October 2005. At this second planning meeting, the Tribunal was advised that the matter had settled and that the Respondent had provided the Applicant with copies of all the documents that were in dispute. This meant that, other than the Applicant's proposed application for costs, there was no issue for the Tribunal to determine in respect of the decision that was the subject of the application for review. Principles governing costs 6 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 but it 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" warranted an award of costs: see Gizah Pty Ltd v AXA Trustees Limited (No. 2) [2001] NSWADT 164 at [29]. 7 "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 Cheug [2001] NSWADT 18 at [11]. It is also well established that the mere fact that the Tribunal did not agree that the Administrator's decision was a correct and preferred decision is not sufficient to constitute special circumstances for the purposes of s.88(1) of the ADT Act: see Hutchings Electrical v Director General, Department of Fair Trading (No. 2) [2002] NSWADT 255 at [18]. 8 In Practice Note 12, reissued on 11 May 2005, the following examples of "special circumstances" which may warrant an order for costs under s.88(1) of the ADT Act are set out as follows: "Whether a party has conducted the proceedings in the way that disadvantaged another party to the proceedings by conduct such as: (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 9 The Applicant contends that he has been prejudiced by the fact that the internal review determination of his FOI request was incorrect. The basis on which this contention is made is that, on 19 October 2005, the representative of the Respondent advised the Applicant's legal representative that following the first planning meeting the matter had been referred for reconsideration to the newly appointed Deputy Director of the Compliance Law Division of the Legal Services Section of the Respondent. It is contended that the fact that this officer, who the Applicant states he was advised was better experienced in this area of the law, came to a different conclusion was indicative of the determination of the internal review officer having made the incorrect decision. That is there was no basis on which the exemption could be claimed in respect of the documents in issue. 10 The Applicant has also made reference to the Tribunal having been "critical", at the planning meeting of 30 August 2005, of the Respondent's decision to refuse access. That criticism is alleged to have been based on the fact that the investigation to which the investigation report and the statements related had been completed. Respondent's contention 11 The Respondent contended that there was no basis on which a costs order could be made under s.88(1) of the ADT Act. In this regard it contended that the decisions determinations of the Respondent prior to the release of the documents in question, had been transparently set out in the notices of the initial determination and the internal review determination. These determinations it was submitted did not give rise to special circumstances that warranted costs to be awarded. 12 The Respondent also pointed to the fact that various officers to whom responsibility is given to make determinations under the FOI Act, may exercise his/her discretion differently to that of another officer. It is the Tribunal's understanding that the contention of the Respondent is that the newly appointed Deputy Director's decision to release the material for which an exemption had previously been claimed to be exempt was merely a different exercise of the discretion that is available to the determining officer under the FOI Act. Reasoning 13 In this application, the merits or otherwise of the Respondent's internal review determination were never tested. Nor is there any evidence as to the basis on which the newly appointed Deputy Director exercised his discretion to grant the applicant access to the documents. He may have also formed the view that the documents were exempt on the grounds that had been claimed, however as is provided in s.25(1) of the FOI Act, the question as to whether access should be refused in any event remains a question of discretion in most cases. That is, even if the document is in fact exempt, the agency can never the less determine to release the document. There are however, certain exemptions where no discretion exists: see s.25(3) of the FOI Act. The exemptions applicable to this application do not come within that class of exemption. 14 There is also no evidence to support the various contentions of the Applicant. In particular, there is no evidence to indicate that the internal review officer did in fact lack relevant expertise and legal knowledge or that his determination was incorrect. Even if there was such evidence I cannot see how this of itself could give rise to special circumstance in the relevant sense. 15 The Applicant's contention that the Tribunal was "critical" of the decision of the internal review determination is also not supported by the material before the Tribunal. In my opinion it is a reflection of the applicant's misunderstanding of what may have been said at the planning meeting. The objective of planning meetings is to seek to identify those issues, which are in fact in dispute in respect of the documents for which access has been refused. There are often discussions as to the general principles, as set out in previous Tribunal decisions, that relate to the operation of the various exemptions. However, planning meetings are not a forum in which the merits of the application that is before the Tribunal is determined. 16 In this application, the matters, which were in issue in respect of the documents was resolved between the parties at an early stage of the proceedings before the Tribunal. As mentioned above, the basis on which that resolution occurred has not been explained. 17 Accordingly, in my opinion, the Applicant has failed to satisfy me that it has been disadvantaged in its application before the Tribunal by the conduct of the Respondent so as to give rise to special circumstances. Even if they did, in my opinion the Applicant has failed to establish that costs are warranted. As explained this matter was resolved very quickly. Decision 18 The Tribunal orders that the Applicant's application for costs be dismissed.