CITATION: Hartas v South Eastern Sydney & Illawarra Health Service [2007] NSWADT 225 DIVISION: General Division APPLICANT PARTIES: Maria Hartas RESPONDENT South Eastern Sydney & Illawarra Health Service FILE NUMBER: 073111 HEARING DATES: 2 July 2007, 7 August 2007 SUBMISSIONS CLOSED: 14 September 2007 DATE OF DECISION: 27 September 2007 BEFORE: Montgomery S - Judicial Member CATCHWORDS: access to documents - adequacy of search - Freedom of Information Act - access to documents - adequacy of search MATTER FOR DECISION: Costs LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Cripps & Anor v G & M Dawson Pty Ltd & Anor (2006) NSWCA 81 CASES CITED: Miriani v Commissioner for Fair Trading, Office of Fair Trading [2006] NSWADT 52 North Eastern Travelstops Pty Limited v Bradley and Ors (No. 2) [2005] NSWADTAP 17 APPLICANT P Matters, agent REPRESENTATION: RESPONDENT F Lewandowski, agent ORDERS: Ms Hartas' application for costs is dismissed REASONS FOR DECISION 1 Ms Hartas applied to the South Eastern Sydney & Illawarra Health Service ("the AHS") under the Freedom of Information Act 1989 ("the FOI Act') seeking documents relating to a meeting held on 7 June 2006. She sought: 1) All notes, records, minutes, summaries, transcripts and reports of meetings between the applicant and representatives of the South Eastern Sydney & Illawarra Area Health Service. 2) All notes, records, minutes, summaries, transcripts and reports relating to the employment of the applicant with the South Eastern Sydney & Illawarra Area Health Service. 3) All assessments, commentaries, communications, recommendations, discussions and notations reliant to the employment of the applicant within South Eastern Sydney & Illawarra Area Health Service. 2 The AHS provided Ms Hartas with a number of documents that it identified as falling within the scope of the request. Ms Hartas was dissatisfied with the material she received and asserted that other documents existed which had not been provided and she applied to the Tribunal for external review of the AHS's determination. The matter came before me for hearing on 2 July 2007 at which time the evidence provided on behalf of the AHS made it apparent that other documents that it held fall within the scope of the application. I remitted the matter for reconsideration of whether those documents should be released. 3 Ms Hartas was ultimately provided with further material. She now seeks an order that the AHS pay her costs associated with the proceedings. The AHS opposes that application. Applicable legislation 4 The Tribunal's power to award costs is pursuant to section 88 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). Section 88 provides. 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 a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 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. Ms Hartas' case 5 Ms Hartas sought orders from the Tribunal that: (1) The AHS pay Ms Hartas' costs of and incidental to proceedings in the Tribunal, and (2) The AHS pay Ms Hartas' costs of and incidental to the proceedings giving rise to the application, as well as the costs of and incidental to the application. 6 Mr Matters provided written submissions in support of this application. He referred to a number of authorities that he says support the contention that the Tribunal has power to make an award for the costs sought. 7 Mr Matters submitted that by its refusal to comply with the FOI Act and its wilful refusal to comply with Directions of the Tribunal, the AHS has shown a failure to exercise in good faith, the functions imposed under the FOI Act. He contends that these are special circumstances warranting an award of costs. 8 Ms Hartas seeks to recover any loss of earnings suffered in consequence of the hearing of her application before the Tribunal. She seeks an order for costs for lost wages for the four days she was present before the Tribunal. Mr Matters submitted that the deductions from Ms Hartas' leave entitlements represent a cost of the application and representation before the Tribunal and are therefore subject to the discretion of the Tribunal for an order for indemnification of costs. The Agency's case 9 The AHS has opposed Ms Hartas application for costs. Mr Lewandowski provided written submissions in support of the AHS position and stated: The AHS reasons for opposing the payment of costs to Ms Hartas are as follows: 1. The AHS has at all times acted in good faith and has been open and transparent in its communication with Ms Hartas. Ms Hartas has been offered the option of examining her employment records on many occasions. This opportunity was not taken up. Her personal file was, in fact, copied and presented to her prior to the FOI request being made. 2. The AHS has tried to meet Ms Hartas' requests for documentation. Ms Hartas has consistently requested that she sought the hand written notes in relation to the June 2006 meeting. She was informed that they no longer existed - they were destroyed. At the preliminary meeting held with the ADT, this was the primary issue in question and our statutory declarations reflected this overwhelming primary demand. At no time did Ms Hartas ever ask for the first draft version of the minutes which, if identified, would have been supplied to her. 3. The AHS has spent over 200 hours retrieving documents under the FOI request. Ms Hartas only paid $30 for this, despite the ability of the organisation to charge over $700 for the time spent on the request. The AHS made a conscious decision not to enter into legal arguments regarding this payment as we were committed to providing information to Ms Hartas. On several occasions we counselled Ms Hartas as to taking steps to eliminate her expenditure. 4. When a review of the FOI request was conducted, Ms Hartas did not pay the required $40 fee as it was waived by the AHS. 5. Finally, with regards to concerns expressed that Ms Hartas had "lost" wages as a result of attending the various days at the ADT (a total of three days), after examining Ms Hartas' employment record we note that she was paid for 2 July, utilised an paid accrued day off (ADO) on 27 July and was granted Annual leave on the 7 August. There has been no loss of income to Ms Hartas as a result of her attendance at these hearings. Findings 10 As indicated above, section 88(1) of the ADT Act allows an award of costs where there are special circumstances that warrant such an award. There are many decisions which have considered this section however few awards have been made in the Tribunal's General Division. (See however Miriani v Commissioner for Fair Trading, Office of Fair Trading [2006] NSWADT 52) Where an award of costs has been made it has often been against a party whose conduct has had a seriously unfair impact on the other. It is clear that serious unfairness is not a test that applies in all circumstances, but it is still a very useful guide. Cripps & Anor v G & M Dawson Pty Ltd & Anor (2006) NSWCA 81 at paragraph 60, the Court of Appeal considered whether special circumstances applied. It stated at paragraph [60]: For this purpose, it suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional. While the finding of "serious unfairness" is not prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration. 11 After considering all the arguments presented by the parties I am generally in agreement with those presented by the AHS. While I accept that the AHS ultimately failed to discharge the onus of showing that the determination was justified, this was not a case in which the AHS persisted in an almost unsupportable case of the kind considered in North Eastern Travelstops Pty Limited v Bradley and Ors (No. 2) [2005] NSWADTAP 17. I agree with the AHS's contention that Ms Hartas' focus was on the hand written notes in relation to the June 2006 meeting. Her application in relation to those notes failed. It was not until the hearing of the matter that it became apparent that she also sought drafts of other documents that she had been given. While it was apparent that these drafts fell within the scope of the request, the AHS had acted reasonably in its efforts to satisfy Ms Hartas' request. I do not accept Ms Hartas' contention that the AHS has failed to exercise in good faith, the functions imposed under the FOI Act. 12 It is my view that the AHS acted reasonably in adopting the position that it did. I do not consider that there are any special circumstances that warrant an award of costs. Order Ms Hartas' 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.