Charteris (No. 2) -v- General Manager, Leichhardt Municipal Council [2000] NSWADT 109

CITATION: Charteris (No. 2) -v- General Manager, Leichhardt Municipal Council [2000] NSWADT 109 DIVISION: General Division APPLICANT Geoffrey Ivan Charteris PARTIES: RESPONDENT General Manager, Leichhardt Municipal Council FILE NUMBER: 993259 HEARING DATES: SUBMISSIONS CLOSED: 08/03/2000 DATE OF DECISION: 08/11/2000

BEFORE: Smith MB - Judicial Member APPLICATION: Costs MATTER FOR DECISION: Costs application LEGISLATION CITED : Freedom of Information Act 1989 Mangoplah Pastoral Company Pty Ltd -v- Great Southern Energy [2000] NSWADT 4 Sloey -v- State Transit Authority [1999] NSWADT 40 CASES CITED: Boscolo -v- Secretary, Department of Social Security (1999) 29 AAR 120 Hurt -v- Director General, Department of Fair Trading [1999] NSWADT 50 Raethel -v- Director General, Department of Education and Training [2000] NSWADT 56 Comcare -v- Labathas (1995) 61 FCR 149 APPLICANT REPRESENTATION: P Singleton, barrister RESPONDENT C Ronalds, barrister ORDERS: The application for costs is refused.

REASONS FOR DECISION 1 On 22 June 2000 I published my decision and reasons in Charteris v General Manager, Leichhardt Municipal Council [2000] NSWADT 81. The applicant has subsequently applied for an order that the respondent pay his costs of the whole or part of the proceedings. The parties have filed written submissions on this application and, in accordance with the directions set out in the above decision, I take them to have consented to my deciding the application on those submissions and without further hearing. 2 The power to award costs is found in s 88 of the Administrative Decisions Tribunal Act 1997 (NSW): "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 the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on any other basis. … (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." 3 Neither counsel challenged what I said as to this power in Mangoplah Pastoral Company Pty Ltd v Great Southern Energy [2000] NSWADT 4, and I propose to apply it: "I must therefore consider whether I am satisfied "that there are special circumstances warranting an award of costs". I agree with the Tribunal in Sloey v State Transit Authority [1999] NSWADT 40 at [12] that this requires me to consider "whether there is something within (the circumstances of the case) which would justify the awarding of costs". However, I do this in the context where the precondition to the costs power gives "a direction to the decision-maker that the discretion it constrains is not lightly to be enlivened" (c.f. Boscolo v Secretary, Department of Social Security (1999) 29 AAR 120 at 124, and cases there cited. See also Hurt v Director-General, Department of Fair Trading [1999] NSWADT 50). The legislature has given a clear indication that the Tribunal is not to apply the usual approach to an unfettered discretion to award costs in judicial proceedings, i.e. that the successful party can expect to enjoy the benefit of a costs order. Something more than success is needed to warrant an order, whether the successful party is a citizen challenging an administrative decision or an administrative agency resisting such a challenge. Moreover, due to the inherent nature of the Tribunal's jurisdiction in its General Division, the fact that the proceedings concern the correctness of an action taken by a government agency does not of itself raise a "special" consideration. In such proceedings both sides should normally come to the Tribunal with the expectation that they will carry their own costs." 4 Although s 88(4)(b) extends the costs power to proceedings which preceded the application to this Tribunal, it has been held that this "does not cover the entire administrative process that occurs in agencies leading to the making of decisions that are capable of being the subject for review to the Tribunal" but only antecedent proceedings which involved "a process of such formality that considerations of natural justice would permit a person to seek and be granted legal representation" (Raethel v Director-General, Department of Education and Training [2000] NSWADT 56 at [53-54]. This interpretation was accepted by counsel for the applicant in the present case. In FOI proceedings such as the present, it appears to limit the cost power to costs "of" or "incidental to" the review proceeding in the Tribunal. This may itself encompass some expenses incurred prior to the actual institution of the proceedings but only if they have a requisite connection to the Tribunal proceedings (c.f. Comcare v Labathas (1995) 61 FCR 149). I shall not pause here to analyse what that connection must be, since the present application seeks only unparticularised costs "of the proceedings" or of "that part of the proceedings which took place on 5 and 6 June 2000". 5 I note that s 56(3) of the FOI Act expressly envisages the possibility of applications for costs where an agency has applied under s 56(2) for further time to deal with an access application. Although the respondent did not so apply in the present case, the internal review decision which I reviewed pursuant to s 56(4) was made subsequent to the application to the Tribunal. I consider that this circumstance may be taken into account as pointing towards an award of costs to the applicant, but I do not take it as necessarily requiring an award, nor as absolving me from the need to examine all the surrounding circumstances and to be "satisfied that there are special circumstances warranting an award". 6 I accept the view expressed in Raethel (supra) at [56-59] that the costs power should not be used as "some kind of sanction to punish agencies for poor administration" preceding the Tribunal proceedings and that the Tribunal should not embark on "a general inquiry into the way in which the agency dealt with the applicant". However, as that case accepts, it may be relevant to consider whether an agency has failed to observe statutory procedures "pertinent to an application" to the Tribunal, at least where it is found that these have had an impact on the costs incurred by the applicant so as to make it appropriate that the agency should indemnify some or all of them. When considering an agency's conduct in relation to the proceedings, I remain of the view expressed in Mangoplah (supra) at [9]: "in the context of a costs application under s 88(1), I do not think that the reasonableness of a party's contest of proceedings before the Tribunal should be assessed by an overly critical scrutiny". 7 The applicant's submission seeking a "full" costs order identified the special circumstance as being that the applicant "had no choice but to commence proceedings in order to obtain due process" due to "the respondent's failure to meet its obligations" under the FOI Act. The submission was elaborated with reference to the history of the FOI request. The applicant complained that the respondent's FOI officer gave insufficient advice as to how to make a request, including as to a fee payable, and that there were delays and inadequacies in the respondent's responses to his request, leading to protracted correspondence and numerous visits to the Council offices to inspect documents. There was further delay in responding to his request for an extension of time for an internal review, and the present application to the Tribunal was brought before an internal review was completed. A particular complaint is that the applicant was never given a complete list of the documents claimed to be exempt prior to his reaching the Tribunal, and did not receive sufficiently particularised reasons for the claim for exemption. 8 I have considered all the applicant's submissions, but they do not persuade me that these circumstances warrant an order that the respondent pay his costs of the proceedings. Notwithstanding a disclaimer in the submissions, the applicant's criticisms essentially locate defects in the respondent's procedures prior to and not "incidental to" the present proceedings. I regard these criticisms as of little relevance to a decision under s 88(1), and consider that they fail to take account of the difficulties facing the respondent's officers resulting from the width, informality and vagueness of the applicant's FOI request and its intermingling with the applicant's other concerns. Although the evidence may show a less than perfect history leading to the commencement of the present proceedings, in my opinion it does not provide special circumstances for indemnifying the applicant against his expenses in pursing the proceedings in this Tribunal through three hearing days. 9 More relevantly, I have found nothing in how the Council conducted itself in the course of the proceedings in the Tribunal which amounts in my opinion to "special circumstances" which warrant an award of the costs of the proceedings against it. The outcome of the proceedings points to the contrary, since in relation to the bulk of the documents I have upheld the Council's claim for legal professional privilege. The foundation of that claim must always have been apparent to the applicant, since it concerned litigation to which the applicant was a party and the taking of legal advice in response to opinions tendered by the applicant. In this context, I do not consider that the absence of an itemised list of documents prior to the present proceedings as a significant omission on the respondent's part, and certainly not as providing a "special circumstance" warranting an award of costs. I consider that the respondent's failure to follow some of the formalities of s 28 of the FOI Act, while regrettable, does not in the present circumstances warrant an order that it should pay the applicant's costs of the proceedings. In essence, I do not accept that these omissions "compelled" the applicant to commence and pursue the present proceedings, or, at least, to do so in circumstances where he should receive an exceptional indemnity for his costs. 10 The applicant's alternative application was for an award of his costs for the adjourned hearing on 5 and 6 of June 2000. I can find no "special circumstances" warranting such an award against the respondent. There are many reasons for this, but the clearest, as the transcript of proceedings on 5 April 2000 should show, is that the adjournment on that day was inevitable and necessary due to the under-estimation of the length of hearing at half a day and the consequent unavailability of a hearing room in the afternoon of 5 April 2000. In this respect, I note that this estimate was expressly adopted by the applicant's present counsel on page 7 of the transcript of the directions hearing of 17 December 1999. I do not consider that the ultimate length of the hearing can be attributed to any conduct on the part of the respondent for which it should incur an award of costs. 11 I therefore refuse the application for costs.