Cianfrano v Chief Executive Officer, NSW State Rail Authority [2004] NSWADT 223

CITATION: Cianfrano v Chief Executive Officer, NSW State Rail Authority [2004] NSWADT 223 DIVISION: General Division APPLICANT PARTIES: Robert Cianfrano RESPONDENT Chief Executive Officer, NSW State Rail Authority FILE NUMBER: 043149 HEARING DATES: 07/09/2004 SUBMISSIONS CLOSED: 10/05/2004 DATE OF DECISION: 10/07/2004

BEFORE: Hennessy N - Magistrate (Deputy President) APPLICATION: Costs MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 CASES CITED: Cianfrano v NSW Department of Commerce [2004] NSWADT 134 APPLICANT REPRESENTATION: C Saggers, agent RESPONDENT J Potts, counsel ORDERS: 1. The application is withdrawn and dismissed; 2. Mr Cianfrano is to pay State Rail's costs of the hearing on 7 September 2004 as agreed or if no agreement can be reached within 28 days, as assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987

Introduction 1 The State Rail Authority charged Mr Cianfrano $300 to process his application under the Freedom of Information Act 1989 (FOI Act). He applied to the Tribunal for a review of that decision. On the day of the hearing Mr Cianfrano withdrew his application and it was dismissed. State Rail then applied for costs on the basis that they had offered to settle the matter and had told Mr Cianfrano that unless he accepted the offer and withdrew his application, they would apply for costs. Mr Cianfrano did not withdraw his application until the morning of the hearing. He said that he would have withdrawn his application if Clayton Utz, the solicitors for the State Rail, had not intimidated him by telling him that they would apply for costs. Issue 2 The issue is whether the Tribunal should make an order that Mr Cianfrano pay State Rail's costs. The Tribunal can only award costs if "it is satisfied that there are special circumstances warranting an award of costs." (Administrative Decisions Tribunal Act 1997, s 88(1).) Circumstances 3 On 8 April 2004 Mr Cianfrano applied to State Rail under the FOI Act for certain documents. When making that application, Mr Cianfrano said that he was requesting the documents "in the public interest" and asked that the normal fees be waived. On 6 May 2004 State Rail wrote to Mr Cianfrano telling him that it would take up to 10 hours to copy the documents and that they would start copying when they received $300.00 for processing costs. State Rail also told Mr Cianfrano that they would refund him $150.00 if they accepted his submission that the application was in the public interest. Mr Cianfrano says that he did not receive this letter until 20 May, but in any case, he did not reply. Instead, he filed an application with the Tribunal on 17 May 2004 on the basis that State Rail had refused his application by not responding within the 21-day time limit. 4 On 4 August 2004 the solicitors for State Rail wrote to Mr Cianfrano telling him that the Tribunal had decided the question of the reasonableness of fees to be charged in another case involving him and that as a result of that decision his present application would "inevitably fail." (See Cianfrano v NSW Department of Commerce [2004] NSWADT 134.) State Rail put Mr Cianfrano on notice that if he proceeded with his application they would apply to the Tribunal for a costs order. On 19 August 2004 Mr Cianfrano responded to that letter enclosing a cheque for $150.00 and saying that he was happy to accept a 50% reduction in relation to the fees. He added that he would withdraw his application "on receipt and acknowledgment of the Freedom of Information application being processed in accordance with the legislation and the spirit of the legislation." 5 In letters dated 23 August, 31 August and 2 September 2004 State Rail clarified that the $150.00 did not include other tasks required to complete the processing of his application. State Rail also re-iterated that they would be making an application for costs if Mr Cianfrano did not withdraw his application. In further correspondence from Mr Cianfrano dated 31 August and 3 September he objected to any further amounts being charged. The hearing was listed for Tuesday 7 September. On 3 September, the Friday before the hearing, at 6.08 pm, State Rail faxed a letter to Mr Cianfrano making the following offer: . . . for the purposes of resolving the present dispute regarding your liability to pay the SRA's reasonable costs of processing your application, we are instructed that, subject to you agreeing to withdraw your application before the Tribunal, the SRA will accept your cheque for $150 in full payment of all costs associated with its processing of your application. If this is acceptable, could you please let us know as soon as possible and notify the Tribunal that the application is withdrawn. 6 The letter went on to explain what State Rail would do once the application had been withdrawn. Mr Cianfrano did not reply to that letter. State Rail wrote a further letter on 6 September 2004, the day before the hearing, which was faxed to Mr Cianfrano at 1.52 pm. It contained the same offer as that in the 3 September letter and repeated their warning that they would be applying for costs if the application was not withdrawn. 7 Mr Cianfrano replied by facsimile at 4.21 pm on the same day, 6 September 2004: If I could take item 5 (the offer of settlement) on its face, I am sure between Mr Al-Malah (the FOI officer of State Rail) and myself and without a middleman we could resolve our differences. It is your disclaimers that are the sticking point. (All words in brackets added.) Five states quite clearly for an advance payment of $150.00, SRA will prepare a schedule which will be made available listing those documents that can be made available and those for what ever FOI Exemption SRA believe is applicable will not be available. This is quite normal procedure. If that is what SRA are saying then please have them advise me directly, as I find this triangle approach with Clayton Utz acting as a de facto FOI officer most disconcerting. As there is a matter of urgency to all of this - the hearing necessitating my travelling to Sydney from Orange in the early hours of the morning I would appreciate a prompt and a concise response. 8 Although State Rail attempted to reply to this letter by a facsimile it is common ground that Mr Cianfrano did not receive that letter. 9 In written submissions, Mr Cianfrano criticised State Rail's response to his FOI application maintaining that it had failed to: · respond to his application within the 21 day time limit resulting in a "deemed refusal"; · comply with the objects of the Act; and · comply with "government policy". 10 According to Mr Cianfrano, these failures on State Rail's part mean that the question of costs does not arise. During the course of the hearing Mr Cianfrano's admitted that the reason he did not withdraw before the hearing was that he objected to the "intimidating letters" that State Rail's solicitors had written telling him that they would be applying for costs. Reasons and decision 11 Whether or not Mr Cianfrano was entitled to lodge the application with the Tribunal as a result of their "deemed refusal" to determine his application within 21 days is no longer an issue the Tribunal needs to determine. The questions about compliance with the objects of the Act or 'government policy' are also moot points given the fact that Mr Cianfrano has withdrawn his application. 12 Having read all the correspondence, I find that State Rail was making a genuine and concerted effort to settle the proceedings and avoid the costs involved in a hearing. Mr Cianfrano did not like being put in that position so he decided not to co-operate. 13 The special circumstances which persuade me that costs should be awarded against Mr Cianfrano are that: · he was on notice that State Rail would be applying for costs unless he withdrew his application prior to the hearing; · he ultimately withdrew his application on the morning of the hearing, even though he had sufficient time to withdraw his application prior to the hearing; · one of the reasons he did not withdraw earlier was that he objected to the "intimidating letters" that State Rail's solicitors had written; and · he knew that his refusal to withdraw his application prior to the hearing would lead to State Rail incurring unnecessary costs. Order Mr Cianfrano is to pay State Rail's costs of the hearing on 7 September 2004 as agreed or if no agreement can be reached within 28 days, as assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987.