PC v University of New South Wales (GD) (No 3) [2007] NSWADTAP 11

Appeal Panel - Internal

CITATION: PC v University of New South Wales (GD) (No 3) [2007] NSWADTAP 11

APPELLANT PARTIES: PC RESPONDENT University of New South Wales

FILE NUMBER: 059052; 059078

HEARING DATES: 1 February 2007

SUBMISSIONS CLOSED: 1 February 2007

DATE OF DECISION: 1 March 2007

BEFORE: Karpin A - ADCJ (Deputy President); Higgins S - Judicial Member; O'Neill A - Non Judicial Member

CATCHWORDS: costs

MATTER FOR DECISION: costs

FILE NUMBER UNDER APPEAL: 053071

DATE OF DECISION UNDER APPEAL: 11/22/2006

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997

CASES CITED: Brew v. Whitlock (No.3) (1968) VR 504 In Re Inchape, Craigmyle vg. Inchcape (1942) 1 Ch 394J Aron Corporation v. Newmont Yandal Operations [2006]NSWCA 849Storey & Keers Pty.Ltd. v. Johnstone (1987) 9 NSWLR 446

APPELLANT N Sharp, barrister REPRESENTATION: RESPONDENT C Jackson, barrister

ORDERS: 1. The respondent's application is dismissed; 2. No order as to costs.

REASONS FOR DECISION 1 This is an application by the respondent consequent upon a decision of this Appeal Panel handed down on 12 October 2006. By letter dated 16 October 2006, the respondent sought, pursuant to the provisions of section 87 Administrative Decisions Tribunal Act 1997, to have the Tribunal reconsider a costs order made on 12 October 2006. 2 Section 87 provides: (1) If, after the making of a decision by the Tribunal, the Tribunal is satisfied that there is an obvious error in the text of the decision or in a written statement of reasons for the decision, the Tribunal may direct the Registrar to alter the text of the decision or statement in accordance with the directions of the Tribunal. (2) If the text of a decision or statement is so altered, the altered text is taken to be the decision of the Tribunal or the reasons for the decision, as the case may be. (3) Examples of obvious errors in the text of a decision or statement of reasons are where: (a) … (b) there is an error arising from an accidental slip or omission, or (4) The powers of the Tribunal under this section may be exercised by the President or by the member who presided at the proceedings to which the decision relates. 3 The orders made by the Tribunal on 12 October 2006 were: 1. Appeal (File No.059078) is dismissed. 2. Appellant to pay respondent's costs pf the Appeal (File No. 059078) and Appeal (File No.059052) in the sum of $4,000. 4 The Tribunal gave comprehensive reasons for its decision to make an award of costs against the appellant. It is incontrovertible that the Tribunal made its decision on quantum, under the mistaken belief that the amount sought by the respondent in respect of both matters, was $4,443.75. At para. 20 of the decision the Tribunal said: 20….the appellant was put on notice by the respondent that…the respondent would seek an order for costs of the proceedings before the Appeal Panel. …at the conclusion of the hearing of the second appeal on 5 May 2006… the Appeal Panel directed the respondent to file any further material upon which it sought to rely….That material was filed on 9 May 2006. The respondent sought costs in the sum of $4,443.75 in respect to both appeals. 5 It is now apparent that this amount related only to costs sought in matter no. 059078, which had been submitted to the Tribunal by facsimile of 9 May 2006. The Tribunal overlooked an application for costs, which, pursuant to an order made on 30 November, was forwarded to the Registrar of the Tribunal by the respondent by facsimile on 2 December 2005, relating to file no. 059052, seeking an amount of $4050. Thus the total costs orders sought by the respondent amounted to $8,493.75. 6 In arriving at its decision on costs, the Tribunal held that the conduct of the appellant gave rise to a finding that there were special circumstances justifying an award of costs pursuant to s. 88 Administrative Decisions Tribunal Act 1997. In exercising the discretion under that section, however, the Tribunal came to the view that, for the reasons given, the full burden of the respondent's costs should not fall upon the appellant. 7 The Tribunal said: 28 The Appeal Panel is of the view that it should exercise the costs discretion in favour of the respondent. Further, that the costs awarded should more nearly represent the actual costs incurred by the respondent. The appellant has persisted in her claims despite all endeavours made by both the respondent and the Tribunal at various points, to have her remedy the basic flaw in her case. There comes a time when such persistence in the face of information, knowledge and reason, must be reflected by a costs order that permits the respondent to recover at least a reasonable portion of the expense to which it has been forced over the history of the matter. 29 The Appeal Panel has arrived at this conclusion with some reluctance, bearing in mind the nature of the jurisdiction exercised by the Tribunal. An order for costs has the ability to deter an applicant from making further applications, and is otherwise out of step with the general philosophy applicable to matters brought under the Privacy and Personal Information Protection Act 1998. As the President said: "The applicant for a costs order must demonstrate that there are 'special circumstances' that take the case outside the ordinary boundaries that apply to the conduct of cases in the Tribunal." 30 The respondent has been put to the cost of meeting a case in the Tribunal both at first instance and before the Appeal Panel in circumstances where the Appellant had been advised on numerous occasions about the essential flaw in her application. That conduct gives rise to special circumstances. 31 The Appeal Panel is satisfied that the respondent should substantially recover the actual costs of the proceedings before the Appeal Panel. 32 The appellant will pay the costs of the respondent of and incidental to the proceedings before the Appeal Panel, assessed in the sum of $4,000.00 8 In arriving at the figure of $4,000, the Tribunal was clearly cognizant of the fact that the orders made by the Tribunal on that day, included dismissal of an appeal against a costs order in the sum of $2,500 imposed upon the appellant in matter no.059078. Thus the total costs orders imposed upon the appellant, amounted to $6,500. 9 The respondent submits that this is a case of an inadvertent slip by the Tribunal, in overlooking one of the costs assessments filed by the respondent pursuant to an order of the Tribunal. That is factually correct. 10 The respondent then submits that this is a very clear case for the application of the slip rule, as it is set out in s.87 (3) (b) Administrative Decisions Act 1997. It is not an application to re-open the proceedings, but a simple matter of remedying an error on the part of the Tribunal in overlooking one of the costs submissions. 11 Alternatively, the respondent sought to rely upon an implied power to apply the "slip rule", in order to give effect to the reasoning of the Tribunal in arriving at the costs order imposed upon the appellant. 12 The Tribunal is of the view that insofar as it has any power to apply the slip rule, that power can only arise pursuant to s. 87 (3) (b). There is no inherent or implied power in the Tribunal to apply the slip rule. 13 On behalf of the appellant, counsel argued that this is not a case giving rise to the application of the slip rule. He submitted that the Tribunal did not make a slip. Rather, the Tribunal exercised its discretion and arrived at a costs order that reflected its intention to impose a costs penalty on the appellant, for the reasons given. What, in effect, the respondent seeks, is that the Tribunal re-visit the issue of costs, and, taking into account the additional evidence which it previously overlooked, exercise its costs discretion anew. 14 In J Aron "Corporation v. Newmont Yandal Operations [2006] NSWCA 849, the court said: Once an order disposing of proceedings has been made and entered, the Court has no jurisdiction to re-open the proceedings to vary or set aside the order, except where the order does not correctly reflect the Court's intention, but was made in error, or, where there is statutory authority to do so. The statutory authority relied on by the plaintiffs is the "slip rule", now found in r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW). The rule provides: "If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the Court, on the application of any party or of its own motion, may, at any time, correct the mistake or error." 15 This is a formulation common to both the Supreme and District Courts, and, similar to that used in the Administrative Decisions Tribunal act. 16 In Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446, McHugh JA (as he then was) said : "The rationale of the slip rule requires that an omission or mistake should not be treated as accidental if the proposed amendment requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might exist." (supra at 453) 17 In Re Inchcape, Craigmyle v Inchcape (1942) 1 Ch 394 Morton J said when granting an application to amend an order of the court in relation to costs which should have been, but were not, asked for by counsel for the relevant party. In determining whether or not to apply the rule Morton J said: "It is true that when the case was before me, I made the order which I intended to make in regard to the costs for which I was asked to make provision, but there was an accidental omission on the part of counsel, and I did not make the order which I would have made if that accidental omission had not occurred." (supra at 399) 18 In Brew v Whitlock (No.3) (1968) VR 504 the Full Court of the Supreme Court of Victoria held that in order for the slip rule to apply it had to be shown that there had been: (a) a slip or omission; (b) that was accidental; (c) an error in the judgment arising from the accidental slip or omission; and (d) an error capable of being corrected under the rule. 19 Applying those principles, the Tribunal has determined that there was a slip or omission; that it was accidental; and resulted in an error in the judgment. The Tribunal is not, however, persuaded that the fourth proviso is satisfied. 20 The Tribunal is not satisfied that this is an error capable of being corrected pursuant to s.87 (3) (b). In arriving at its costs order, the Tribunal firstly exercised its discretion to find special circumstances pursuant to s. 88 (1). Having found special circumstances, the Tribunal then exercised its discretion to arrive at an award of costs which it regarded as fair in all the circumstances, albeit the Tribunal omitted to take into account the costs sought in matter no. 059052. 21 It may well be that had the Tribunal been aware of that additional amount, the result of the exercise of its discretion would have produced a different order. This is not, however, a case in which, for example, the Tribunal expressed an intention that the appellant should pay the whole of the costs sought by the respondent, and made an order in accordance with that express intention. Had that been the situation, the Tribunal could deal with this application under the slip rule provisions. 22 What is sought by the respondent is that the Tribunal reconsider its decision, taking into account the additional amount sought, and overlooked by the Tribunal. That exercise would require the Tribunal in effect to re-open its decision, to hear further submissions, and engage in a fresh exercise of its discretion to make an award of costs against the appellant. That is outside the scope of the power vested in the Tribunal pursuant to s. 87 (3)(b). 23 The respondent's application is dismissed. 24 This unfortunate situation clearly arises from an oversight on the part of the Tribunal. In those circumstances each party should pay their own costs of the application. Orders: 1. The respondent's application is dismissed. 2. No order as to costs.