CITATION: Raethel -v- Director-General, Department of Education and Training [2000] NSWADT 56 DIVISION: General Division APPLICANT Stephanie Raethel PARTIES: RESPONDENT Director-General, Department of Education and Training FILE NUMBER: 993051; 993052 HEARING DATES: SUBMISSIONS CLOSED: DATE OF DECISION: 05/09/2000 BEFORE: O'Connor K - DCJ (President) APPLICATION: Costs MATTER FOR DECISION: Application for costs LEGISLATION CITED : Freedom of Information Act 1989 Oshlack -v- Richmond River Council (1998) 193 CLR 72 Cachia -v- Hanes (1994) 179 CLR 403 Ohn -v- Walton (1995) 36 NSWLR 77 CASES CITED: Building Services Corporation -v- Buckett, Commercial Tribunal, 23 December 1997, unreported Cheyney -v- Spooner (1929) 41 CLR 532 Chaudhary -v- Chaudhary [1984] 3 All ER 1017 Quazi -v- Quazi [1980] AC 744 Latoudis -v- Casey 91990) 170 CLR 534 APPLICANT REPRESENTATION: R Lancaster, barrister RESPONDENT P Singleton, barrister ORDERS: 1. In matters 993052 and 993051 no order as to costs. REASONS FOR DECISION 1 The Tribunal has delivered decisions in two matters involving these parties. On 9 November 1999 the Tribunal delivered its principal decision in matter no 993052: [1999] NSWADT 108. On 25 February 2000 the Tribunal delivered its principal decision in matter no 993051: [2000] NSWADT 14. The two matters are linked in that they arise from a series of requests made under the Freedom of Information Act 1989 (the FOI Act) which commenced in October 1997. They were made by the applicant in her capacity as an education writer for the Sydney Morning Herald. 2 Matter no 993052 related to refusals by the respondent agency of two requests relating to categories of statistics, being data which was capable of being generated in the form of documents. The information sought related to student performance in external examinations. 3 As to one request, the Tribunal affirmed the decision of the agency refusing to disclose data concerning the average Universities Admission Index ('UAI') achieved by school system, school type and Department of Education and Training school district. 4 The other request related to information concerning the estimated mean scaled result in Mathematics, English and Science in the Higher School Certificate ('HSC') for 1997 achieved by school system. The Tribunal set aside the agency's decision. 5 Matter no 993051 related to the decision of the agency refusing to release basic skills test results data in government schools organised by reference to postcode. The Tribunal partly affirmed and partly set aside that decision. (In this matter an appeal has been lodged, and is pending.) 6 In the earlier matter (no 993052) the applicant sought an order for costs. There was a similar application in matter no 993051 relying on the grounds put forward in matter no 993052. In each of the principal decisions, the Tribunal reserved its decision on the costs applications. There has been no request to reconvene to hear further submissions, and the Tribunal will proceed to deal on the papers with the applications on the basis of the submissions made in matter no 993052. The considerations raised apply equally to matter no 993051. This decision will dispose of the application for costs as it relates to both matters. 7 The applicant seeks an order for costs 'of an incidental to the proceedings giving rise to the application to the Tribunal since 7 December 1998.' The applicant also seeks an order for costs 'of and incidental to the proceedings in the Tribunal.' Normal Costs Rule in Tribunal 8 The normal rule applying to the costs of proceedings in the Tribunal is set by s 88 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act). The material provision is sub-section (1) which 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 there are special circumstances warranting an award of costs." 9 The Tribunal does not have any rules bearing on costs in FOI matters, or applications for review generally. But there is one reference to costs in the FOI Act at s 56. That provision relates to the situation of a delay beyond the prescribed statutory period in the making of a determination by an agency or Minister. 10 If a determination is not made within the prescribed period, deeming provisions operate to treat the applicant's application as being refused by the agency. This type of provision ensures that the applicant can then move on, if he or she wishes, to the next step in the process (internal review of deemed decision or application for review to the Tribunal) without being prevented from moving forward because no actual decision has been taken. 11 Section 56 provides a facility under which an agency or Minister can obtain an extension of time. The Tribunal is permitted to make an order allowing the agency or Minister further time to deal with the access application to which the deemed decision relates. In making a 'further time' order, the Tribunal may impose conditions. They may include a condition that if access is in fact granted during the further time allowed, the applicant may be given leave to apply to the Tribunal for an order that the applicant's costs in the proceedings for review are to be paid by the agency or Minister: s 56(3)(a). Where a decision to amend is made during the further time allowed, the applicant may apply for costs to be paid: s 56(3)(b). 12 That provision does not bear directly on this case, but it may be of assistance in ascertaining the scope of the discretion available to the Tribunal on this occasion. Submissions as to Special Circumstances 13 To obtain an order for costs, it is necessary for the party applying to satisfy the Tribunal that there are 'special circumstances' that justify that course. 14 The applicant submits that there are special circumstances in this case which warrant a costs order being made in her favour. 15 I will proceed by setting out each of the applicant's submissions followed in each case by the agency's reply. 16 (i) The applicant submits that the Department did not deal with a group of FOI applications, of which the three giving rise to the proceedings in matter no 993052 and in matter no 993051 formed part, in accordance with either the spirit or the provisions of the FOI Act. She relied in support on an assessment of the agency's handling of the applications prepared by Mr Wayne Kosh, an investigation officer of the Ombudsman's office, made in a letter dated 4 May 1998 to the respondent. 17 (The Tribunal interpolates. The Ombudsman's office's letter of 4 May 1998 deals with the history of the handling of the applicant's application to that point. The applicant first lodged a request on 22 October 1997, which was broad in its scope. It asked for 'A listing of all documents held or stored in any data base under or within the control of [the agency] relating to the 1996 Higher School Certificate.' The applicant, as permitted by the FOI Act, made a complaint to the Ombudsman relating to the handling of this and related applications. There are a number of adverse comments in the letter of 4 May 1998. For example as to the agency's first response to the applicant's request in which the agency informed her that information relevant to the request is publicly available, the Ombudsman notes "however, he [the agency officer] provides her with no information as to whether this document is publicly available, whether access can be granted or if it is an exempt document under the relevant clauses of Schedule 1 of the FOI Act." The Ombudsman then deals with the next application. He reviews the history of the determinations and makes a number of criticisms of the adequacy of the responses and the reasons provided. The office makes the following general assessment: "It would certainly appear to me that the Department has not dealt with or determined [the applicant's] FOI applications in accordance with either the spirit or the provisions of the FOI Act." The Ombudsman's investigating officer made a number of significant criticisms of departmental procedure in dealing with the applicant's three requests belonging to this period of time.) 18 As to (i), the agency replies that it has not been established by the applicant by evidence that this assertion is justified. The agency submits that it is not sufficient to refer to a letter from a non-party, the Ombudsman's office. 19 The agency says that the Ombudsman did not make a finding as submitted by the applicant. The agency refers to the third paragraph of the letter which states that the officer was at that stage 'making written preliminary enquiries in order to decide whether or not' to investigate and his preliminary remarks were based solely on material submitted to the Ombudsman's office by the applicant. The agency also notes that these comments relate to a request which is different to the ones in issue before the Tribunal. 20 (ii) The applicant submits that as the Ombudsman's officer's assessment indicated that a contributing factor to the problem that she encountered was that there was no proper reference in the agency's responses to all the documents that were subject to the FOI application. This submission also referred to responses subsequent to the adverse comments by the Ombudsman's officer which continued to lack adequate detail; and referred to the letter from applicant dated 7 December 1998 and two agency replies, the first being undated but probably late December 1998 and the second being dated 28 January 1999. 21 As to (ii), the agency submitted that this application (again not one of those brought to the Tribunal) was based upon a misunderstanding of the factual situation. The agency said that the application was not for documents which actually existed but for data and a database. As an infinite number of documents could be identified it was not reasonable to ask for the usual course to be followed asking for itemisation of documents. 22 (iii) This submission overlaps with the second submission. This submission relates to the request that constituted the second of the requests considered at hearing in matter no 993052, where the Tribunal decision was in her favour. The applicant submits that the requests for information in the applicant's letter dated 7 December 1998 were, in large part, not properly dealt with by the agency. The applicant stated that she had been required constantly to refine her request, with the regular involvement of the Ombudsman's office, because of the absence of a clear agency statement of the documents it holds relevant to the request. For example the first paragraph of the specific requests in the applicant's letter dated 7 December 1998 includes the HSC data request considered in matter no 993052. That request, she submits, was not responded to by the agency in its response of 28 January 1999 and has not been properly addressed since then. 23 (The Tribunal interpolates. In the undated reply of late December 1998 the agency said, "Regarding your request for estimated mean scaled results in English, Mathematics and Science you will need to clarify the reference period and whether you are seeking system wide or individual school estimates." As to this the applicant immediately replied by letter dated 30 December that she sought the information at a school, district and system wide level. The agency's reply of 28 January 1999 was that "In relation to your request for 'estimated mean scaled results', information of the kind you have requested is provided in the Minister's report to Parliament on the effectiveness of schooling, tabled in December 1998. / You are reminded that the Education Reform Amendment (Publication of Results) Regulation 1997 provides that 'Results … must not be publicly revealed in a way that ranks or otherwise compares the results of particular schools'. This prevents the Department releasing the results at a school level.") 24 As to (iii) the agency submits that the applicant's criticism is too vague to answer in that the allegation is that the agency asked her to redefine her request 'constantly' but no particulars are given. The agency says that only one particular is given being the allegation that the first request in the applicant's letter of 7 December 1998 did not meet with a response from the agency's letter of 28 January 1999. The agency submits that it was in fact answered in the second, third and fourth paragraphs. Two of those paragraphs were quoted by the Tribunal earlier. The extra paragraph states, 'In relation to your request for post school pathways, the information is made public by each school in its annual report. These reports are made available to all members of the public by the school or District Office. The Department's Media Unit would be happy to provide you with copies of these reports.' 25 (iv) The applicant submits that the agency made an inappropriately broad reply to her request for the UAI data - the first one considered at hearing in matter no 993052, over which she was unsuccessful. This information was requested at points 4 and 5 of the applicant's letter of 7 December 1998. The applicant adversely compared the response with the Ombudsman's office's guidelines for agencies in dealing with FOI requests. 26 (The Tribunal interpolates. The applicant asked for the 'average Universities Admission Index by school system and gender' and for 'the average Universities Admission Index for each school by Department of Education and Training school district'. As to this request the agency reply simply said, 'In regard to your last two items seeking details of the average Universities Admissions Index for school systems and individual schools, I would note that the Schedule of the Freedom of Information Act provides exempt status.' The Ombudsman's guidelines refer to the need for agencies to be specific in their responses to FOI requests, requiring them to identity clearly the document the subject of their decision, to list them in a schedule of documents, for several descriptive details to be shown, and for there to be clear and specific reference to whether the document is partly or wholly denied, and the grounds for refusal referring to specific provisions of the Act.) 27 As to (iv) the agency replies that it has inferred that the criticism that the agency's response 'was inappropriately broad' is based on the agency not listing and describing the documents covered by the request. The agency submits that this criticism overlooks the fact that the applicant's request was for data and a database (relying on s 23 of the FOI Act) and it was not a request for documents which actually existed. 28 (v) The applicant submits finally and generally as to the whole course of dealings with her that over the course of 1998 and 1999 (as evidenced by the file of documents tendered by her recording the history of communications between the applicant and the agency) that the agency's conduct was anything but transparent, and neither facilitated nor encouraged the disclosure of information in accordance with the FOI Act. In that context she said that there were persistent unsatisfactory and incomplete answers for requests for documents (see for example the undated agency letter of late December 1998, an agency reply of 11 February 1999 and a further reply of 8 March 1999). She says that as a result she was driven to commence proceedings in the Tribunal. 29 (The Tribunal interpolates. The chain of correspondence to which the applicant specifically referred related to a request by the applicant for 'The performance of all government high schools using the 'value-added measure'.' She said in her request 'I rely on the definition of the term 'value-added measure' as used by the Director-General [of the agency] … in an article published in the Sydney Morning Herald on November 25 [copy provided].' The agency in the first, undated reply does not refer to this request. Consequently the applicant asks in a letter dated 4 February 1999 for the matter to be addressed. The Department in its reply of 11 February 1999 says that the "Department's assumption" in replying to the earlier correspondence "has been those requests arose from our negotiation with the Ombudsman on October 14, 1998 in relation to your earlier Freedom of Information requests about the 'integrated database'. / The 'integrated database' has not been, and is not used, for the purposes of 'value added' analysis. Such analysis is developed elsewhere in the Department and ought to be dealt with separately from the issues relating to the 'integrated database'. / I have drawn your request to the attention of the Department's Freedom of Information Manager, Mr John Harrison, who is the appropriate officer to deal with such a request." The next letter refers to there having been discussions between Mr Harrison and the applicant and notes that it relies on a definition as to what is meant by value-added measures as derived from the article by the Director-General. The agency said that it needed to have the request more closely defined for FOI purposes, asking her to confirm that what she was seeking was "All documents relating to the performance of government high schools using the value added measure, that is, a comparison of the school's intake (as measured by the Basic Skills Test results achieved at the end of primary school) with its output at Higher School Certificate (as measured by TERs for the same students who stayed to the end of year 12.") 30 As to (v) the agency notes that the allegation of lack of transparency is not particularised, and submits that any difficulty of this kind can be traced back to the vagueness of the original application. The agency contends: 'Whilst it is true that the [agency] claimed exemption in respect of some categories of information, it has sought to answer the applicant's many questions, including with supplementary letters when the applicant sought additional information. Again the applicant's use of wide and vague requests hampered precision in response.' Role of Costs Orders 31 The Tribunal has recounted these exchanges in detail to give some insight into the task that might face it in dealing with a 'special circumstances' costs application, if it were called on to undertake a review of the entire administrative history of a relationship between a citizen and an agency that eventually finds its way to the Tribunal. 32 The applicant's aim clearly is to use the power to award costs as a sanction to discipline the agency - in this instance in relation to what she sees as a non-responsive process that failed to comply with a number of the requirements of the FOI Act, as elaborated in some instances through the Ombudsman's guidelines. 33 In her submissions, the applicant argued that the use of the costs power as a sanction of this kind was consistent with the objectives of FOI legislation. For example at s 5(3) of the FOI Act, Parliament states that its intention is 'that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information'. The applicant's key point, as I understand it, is that the Tribunal should adopt an approach in exercising its costs power which encourages agencies to behave in a way which minimises the extent to which applicants are exposed to delay and expense involved in proceeding before the Tribunal. 34 At the very least, she would argue that had the agency been more responsive in its dealings she would have been able to bring both matters to the Tribunal sooner. Meaning of 'Costs' 35 References in the rules of court to 'costs' are ordinarily construed to cover those costs that are incurred by a party for professional legal services including fees and disbursements. Importantly, the personal costs of a litigant are not covered. See Oshlack v Richmond River Council (1998) 193 CLR 72 at 89 (per Gaudron and Gummow JJ), 120-3 (per Kirby J); Cachia v Hanes (1994) 179 CLR 403 at 409-410. That the costs order is designed to assist in reimbursing a successful litigant for the expense incurred in obtaining legal representation has also been held to apply in some Tribunals in New South Wales: see, for example, the Medical Tribunal (Ohn v Walton (1995) 36 NSWLR 77) and the now superseded Commercial Tribunal (Building Services Corporation v Buckett, Commercial Tribunal, 23 December 1997, unreported). 36 The submissions in this case do not challenge those propositions. Meaning of 'Proceedings' and 'Proceedings giving rise to the Application' 37 Ordinarily the discretion to award costs is confined to costs incurred in relation to the proceeding before the court or tribunal. But in the Tribunal Act there is an extended definition of 'proceedings.' Section 88(4) provides: "(4) In this section, costs includes: (a) costs of or incidental to proceedings in the Tribunal, and (b) costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application." 38 The main thrust of the applicant's submission is to argue that the Tribunal is entitled to cover in a costs order not merely the costs of the proceedings before the Tribunal but also the cost of the 'proceedings' that occurred between the applicant and the agency at agency level. 39 Before dealing with this point, the applicant considered whether the references to 'application' in s 88(4)(b) covered both the application for review before the Tribunal and the antecedent application to the agency. The Tribunal's view is that it is clear, as counsel for the applicant ultimately acknowledged in the written submissions, that the term 'application' refers to an application to the Tribunal. The term is a defined one (see s 4) and has the meaning ascribed to it in s 142. Section 142 provides that the term refers to any form of initiating process in both the original and review jurisdictions of the Tribunal, whatever may be the customary term (for example, complaint) used in particular categories of proceedings. 40 Nonetheless the applicant draws attention to that part of s 88(4)(b) which refers to the possibility that a costs order may relate to 'the proceedings giving rise to the application' as well as those 'incidental' to the application. 41 Counsel argues that 'the proceedings giving rise to the application' are 'those events and circumstances that bring about or cause the application.' He refers to a dictionary definition from the New Shorter Oxford Dictionary (1993) dealing with the use of the term 'rise' in the context of the expression 'give rise to' which includes as a meaning, 'cause'. In this instance, he argues, the applicant's original application to the agency and the refusal constitute the 'proceedings giving rise to the application'; therefore it is open to the Tribunal to award costs in respect of those 'proceedings' if special circumstances were established. 42 He submitted: "It follows that the Tribunal, when an application is made for an award of costs in proceedings before it, is not restricted to a consideration of the matters a Court considers when it makes an order for costs in litigation. Since the Tribunal may award costs of the proceedings giving rise to the application to the Tribunal, a party is entitled to request the Tribunal to consider those matters for the purpose of determining whether or not the Tribunal is satisfied that there are special circumstances warranting an award of costs." 43 As to what is meant by 'proceedings giving rise to the application', the agency in reply submits that the term carries the connotation of a formal legal proceeding. 44 Counsel for the agency refers to the construction placed on the use of the term in the Service and Execution of Process Act 1901 by the High Court in Cheyney v Spooner (1929) 41 CLR 532. There Isaacs and Gavan Duffy JJ said at 536-7, "A 'proceeding' used broadly as it is used in [section 16 of the Act under consideration] …, is merely some method permitted by law for moving a Court or judicial officer to some authorised act, or some act of the Court or judicial officer." A similar connotation was attached to the meaning of proceedings in a family law case in England dealing with the difference between a divorce obtained by a solemn religious act and recognised by the relevant religion and one obtained through a secular court: Chaudhary v Chaudhary [1984] 3 All ER 1017 distinguishing Quazi v Quazi [1980] AC 744. 45 In Quazi Lord Ormond at 788 commented that the terms 'proceeding' and 'proceedings' are so 'general and imprecise that the dictionary definitions do not carry the matter any further.' 46 The agency nonetheless submits that the core meaning of 'proceedings' has to do with formal proceedings of a court-like character. Applying this approach to the context of administrative decision-making it gives an example of a prior administrative process which is sufficiently court-like to be covered. The example involves a formal procedure, one governed by detailed statutory provisions, the outcome of which may give rise to significant adverse consequences for the reputation and standing of the individual. The example is that of the operation of the Veterinary Surgeons Investigating Committee in the context of veterinary surgeons discipline. In that instance the Committee constituted by statute (the Veterinary Surgeons Act 1986, s 24) must undertake formal investigations including a form of hearing prior to formulating charges of professional misconduct. Those charges are then heard by the Tribunal and sanctions include deregistration. 47 The agency submits that an individual's FOI application to an agency or Minister does not have the formal indicia necessary to constitute a 'proceeding' in that sense. 48 While accepting the reservations expressed by Lord Ormond in Quazi, the agency's submission does gain support from the definition contained in the Macquarie Dictionary (1st ed 1981) where the meaning attributed to 'proceeding' as used in the law is 'a. the instituting or carrying on of an action at law' or 'b. a legal step or measure: to institute proceedings against a person.' 49 In approaching the question of the meaning of 'proceedings giving rise to the application', the Tribunal considers it useful to look to the object of s 88. The object is to set a rule as to 'costs'. That expression (as already noted) refers to costs connected with obtaining legal representation. With that as background, the term 'proceedings' when used to refer to events antecedent to the proceedings in the Tribunal should be construed as referring to procedures of a kind where legal representation might be reasonably likely to play a part. 50 That approach lends support to the interpretation suggested by counsel for the agency, that the term 'proceedings' refers to a process with characteristics of strict formality. The example he gives is, I consider, a good one. 51 In the disciplinary context, the proceedings that occur at the prior stage to any action being taken in a public tribunal are usually affected by a high degree of formality, and are acknowledged to have significant implications for the member of the profession under investigation and inquiry. A formal procedural framework is laid down by statute and subordinate instruments. Principles of natural justice apply. Legal representation would be permitted unless unequivocally ousted by statute. 52 If a broader interpretation of the kind advocated by the applicant were to be attached to 'proceedings' then s 88(4)(b) would cover any decision-making procedure which is undertaken by an agency before a matter reaches the Tribunal. Counsel for the applicant sought to confine his submission to the context of the FOI Act, but it is difficult to see what distinction could reasonably be invoked to prevent the logic which supports his position in that regard being extended to all agency procedures that involve the making of decisions subject to review by the Tribunal. The objectives of the FOI Act and those of the Tribunal Act, as they seek to impact on government administration, are similar. 53 I am satisfied that the expression 'proceedings giving rise to the application' does not cover the entire administrative process that occurs in agencies leading to the making of decisions that are capable of being the subject of an application for review to the Tribunal. 54 I consider that a narrower view of the expression 'proceedings giving rise to the application' along the lines that I have indicated is more appropriate. It is an expression that, at most, embraces a process of such formality that considerations of natural justice would permit a person to seek and be granted legal representation. In its merits review work the Tribunal has encountered instances of that kind, typically in relation to regulation of occupations or professional discipline. 55 Despite the breadth of the submissions as to the meaning of 'proceedings giving rise to the application', the applicant only sought 'costs of an incidental to the proceedings giving rise to the application to the Tribunal since 7 December 1998, as assessed or agreed.' Consequently the costs application is confined to the last 4 months of the 17 months' period that the applicant's various applications were under consideration by the agency. She filed her application in the Tribunal on 16 March 1999. It was completed in hand-writing with her signature. Neither it nor the accompanying documents made any reference to legal representation. There is no direct evidence before the Tribunal as to what legal costs were incurred by the applicant's employer, John Fairfax Publications Pty Limited in the prior period. The restriction of the application to a period since 7 December 1998 may suggest that that is when the Legal Unit of John Fairfax Publications Pty Limited became involved in the matter. Boundaries on Use of Costs Power 56 In this case the applicant proceeded in the usual way, and dealt directly with the agency. The agency dealt with her in a way, which she regards, as highly unsatisfactory. The applicant's submissions seek to use the costs power as a sanction for poor administration. 57 To use the costs power as some kind of sanction to punish agencies for poor administration would, I consider, involve the error condemned frequently by the courts of using the costs sanction for punitive rather than compensatory purposes: Latoudis v Casey (1990) 170 CLR 534 at 542-3 per Mason CJ; and at 567 per McHugh J. The oversight body for bad administration in government is the Ombudsman's office. This Tribunal only becomes involved in the issue of bad administration to the extent that statutory procedures pertinent to an application may not have been observed. 58 If submissions of the kind made in this case were to be entertained the potential would exist for a costs application to provide the basis for a general inquiry into the way in which the agency dealt with the applicant. In this case, for example, the submissions on behalf of the applicant traversed some requests that at the end of the day did not give rise to an application for review in the Tribunal. 59 It would involve an unreasonable diversion of the Tribunal's limited resources for it to be called upon to look so broadly at the background to an application including matters not providing any foundation for the application. Conclusions 60 The applicant's application for an order for costs in relation to events antecedent to the commencement of proceedings in the Tribunal is not granted. 61 There is a further application for an order in relation to the costs of and incidental to the proceedings in the Tribunal itself. This application refers to the period since 16 March 1999 when the application was filed. The applicant was represented by counsel instructed by her solicitor at the hearing. The matter proceeded to hearing in an orderly way. The applicant did not refer to any conduct on the part of the agency during this period that might provide the basis for finding 'special circumstances' warranting an order for costs in favour of the applicant. Decision 62 In matters 993052 and 993051 no order as to costs. 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.