Lloyd -v- TCN Channel Nine Pty Ltd and Another (2) [1999] NSWADTAP 7

Appeal Panel

CITATION: Lloyd -v- TCN Channel Nine Pty Ltd and Another (2) [1999] NSWADTAP 7 decision revised on:

APPELLANT: Ronald George Lloyd

RESPONDENT: TCN Channel Nine Pty Ltd (First Respondent) and Veterinary Surgeons Investigating Committee (Second Respondent)

FILE NUMBER: 999001

HEARING DATES:

SUBMISSIONS CLOSED: 08/25/1999

DATE OF DECISION: 16 December 1999

Grant of consent under s.126 of the Act to the First Respondent to publish or broadcast the name of the appellant or otherwise to identify the appellant as the respondent to proceedings before the Tribunal. DECISION UNDER APPEAL:

C Needham - Deputy President BEFORE: M B Smith - Judicial Member O McDonald - Member

FILE NUMBER UNDER APPEAL: 984004, 984005, 984015, 984016

DATE OF DECISION UNDER APPEAL: 03/18/1999

PRIMARY LEGISLATION: Administrative Decisions Tribunal Act 1997

Appellant: D Inverarity of counsel instructed by Herman & Green REPRESENTATION: Respondent: 1st Resp - J Griffiths of counsel instructed by Gilbert & Tobin 2nd Resp - S Burchett of counsel instructed by Conway MacCallum

ORDERS: 1. The applications for costs are refused.

1 On 27 July 1999 we made orders disposing of the appeal in this matter, and directed that any application under s 88 of the Administrative Decisions Tribunal Act 1997 (NSW) for costs should be made in writing within 21 days together with a supporting affidavit (see Lloyd v TCN Channel Nine Pty Ltd [1999] NSWADTAP 3). 2 On 13 August 1999 the Tribunal received an application by the VSIC for an order for that its costs in relation to the appeal be paid by TCN and/or Dr Lloyd. An affidavit of John Brian Stinson set out the costs which were sought and the reasons why a costs order was sought. 3 On 17 August 1999 an application was received from Dr Lloyd seeking that TCN be ordered to pay the costs of Dr Lloyd and the VSIC in respect of the proceedings before the appeal panel. An affidavit in support sworn by Barbara Ann Green was also filed. 4 This material was provided to TCN and on 25 August 1999 it filed a written submission arguing against both applications. 5 The parties were told by the Registry that this material would be forwarded to us for determination without our hearing further argument. No party objected to this course, and we consider that it was appropriate in the circumstances. 6 Although TCN was not joined as a party to the appeal or in the proceedings below, it undertook to submit to any order for costs as if it were a party, which it submitted it was, and we refer to paragraph 31 of the majority judgment in this appeal. 7 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 the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 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. 8 No submission was made by TCN that the s 88(1) power was unavailable. We agree that it empowers and governs our decision on these costs applications. There is no provision in other legislation or the Rules relevantly excluding or modifying its application. The situation may be different in relation to the principal proceedings being conducted against Dr Lloyd on the complaints of the VSIC, since if a complaint is proved s 32(1)(f) of the Veterinary Surgeons Act 1986 gives the Tribunal an unqualified discretion to make "an order requiring the veterinary surgeon to pay specified costs relating to the hearing". However, the proceedings before us in which costs orders are sought are proceedings in relation to an application under s 126 of the Administrative Decisions Tribunal Act, and do not invoke a jurisdiction or power conferred by the Veterinary Surgeons Act. 9 We must therefore consider whether we are satisfied "that there are special circumstances warranting an award of costs". We agree with the Tribunal in Sloey v State Transit Authority [1999] NSWADT 40 at [12] that this requires us to consider "whether there is something within (the circumstances of the case) which would justify the awarding of costs". However, we must do so 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). 10 We are not satisfied that there are any "special circumstances" which warrant an award of costs in favour of the VSIC in the circumstances of this case. Although VSIC's active participation in oral and written submissions was useful, in our opinion this was not necessary and was voluntary. Its counsel's submissions to us tended to support TCN, and certainly did not oppose TCN's application nor support Dr Lloyd's appeal. 11 In these circumstances, we can find no reason for ordering TCN to pay its costs. 12 There is even less reason for ordering Dr Lloyd to pay VSIC's costs. The outcome of his appeal shows that it was reasonably brought, and we do not consider that it was unreasonably conducted merely because some of his arguments failed. His unsuccessful arguments did not substantially protract the proceedings. 13 Turning to Dr Lloyd's application for costs, we are also not satisfied that there are "special circumstances" calling for a costs order in his favour to be made against TCN. His application for costs essentially relied upon the fact that his appeal succeeded in overturning the consent given to TCN, and that he "is already sorely tested in meeting the costs of his defence of the original proceedings brought by the VSIC". 14 However, being the successful party does not of itself provide a "special circumstance", and the financial strain of the proceedings described in the evidence before us is not of the degree or nature as to provide a "special circumstance", assuming (without deciding) that this is capable of constituting special circumstances in an appropriate case. The fact that he was ordered to pay costs when his Supreme Court proceedings were dismissed by the Court of Appeal does not, in our opinion, provide a reason warranting a costs order against TCN in the present proceedings. 15 Examining the nature of the present proceedings more closely, neither TCN's original application nor its support of the President's decision can be characterised as unmeritorious or warranting the imposition of a special costs order. The Administrative Decisions Tribunal Act itself requires a media organisation to seek consent before it can perform a reporting role which serves an acknowledged public interest. We do not find that TCN made its application irresponsibly, nor that it unreasonably defended the consent given by the Tribunal at first instance. It was not unreasonable for TCN before us to rely on its argument of "open justice" and not to lead additional evidence, when the sufficiency of this argument had not previously been tested. 16 Dr Lloyd has suffered the misfortune that awkwardly drafted legislation led to the need for clarification by way of interlocutory appeal, and that his was the first case in which the points arose. However, in our opinion these are external circumstances not warranting an order against TCN. It is a situation for which TCN should not be made accountable. 17 We observe that the success of Dr Lloyd's appeal on a novel question of law would have warranted a suitors' fund certificate if we had power to grant such a certificate, but we are not given this power. It might, however, be noted that Dr Lloyd can apply to the Director-General under s 6C of the Suitors' Fund Act 1951. 18 For the above reasons we have decided that the applications for costs made by the VISC and Dr Lloyd should both be refused. 19 We wish to conclude by noting Dr Lloyd's concern that if the imposition of disciplinary sanctions arises for consideration in the principal proceedings, he should not be ordered to carry the VSIC's costs incurred by reason of TCN's application and the appeal to the Appeal Panel. We have sympathy with this concern. It may be that the Tribunal may take into account the incurring by Dr Lloyd of his own costs in the s 126 proceedings as an unfortunate detriment sustained by him as a consequence of the disciplinary proceedings. What weight should be given to this consideration will, of course, be a matter for the Tribunal.