Potier v Department of Corrective Services [2009] NSWADT 143

CITATION: Potier v Department of Corrective Services [2009] NSWADT 143

DIVISION: General Division

APPLICANT Malcolm Huntley Potier PARTIES: REPSONDENT Department of Corrective Services

FILE NUMBER: 073094

HEARING DATES: 2 February 2009

SUBMISSIONS CLOSED: 2 February 2009

DATE OF DECISION: 16 June 2009

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Costs, Contempt, section 58 of the FOI Act

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989

Corrigan & Gibson v Watson [2009] NSWADT 110 Director General, Department of Education and Training -v- Simpson (GD) [2001] NSWADTAP 6 CASES CITED: Makris v Lafiatis and anor [2008] NSWADT 189 Murphy v Arnoldus-Lewis & Anor [2009] NSWCA 142 Potier v Department of Corrective Services [2008] NSWADT 278

APPLICANT In person REPRESENTATION: RESPONDENT T Anderson, barrister

1. Mr Potier's application for the Tribunal to bring matters to the attention of the responsible Minister pursuant to section 58 of the Freedom of Information Act 1989 is refused ORDERS: 2. Mr Potier's application for a report from the Tribunal to the Supreme Court pursuant to section 131(1) of the Administrative Decisions Tribunal Act 1997 is refused 3. No order for costs.

REASONS FOR DECISION 1 Mr Potier applied under the Freedom of Information Act 1989 ("the FOI Act") for access to a number of documents held by the Department of Corrective Services ("the Department"). 2 The decision in the substantive matter is recorded as Potier v Department of Corrective Services [2008] NSWADT 278. At paragraph 75 of that decision I said: 75 Mr Potier has sought costs in relation to these proceedings pursuant to section 88 of the ADT Act. That issue has not yet been argued. Mr Potier has also requested that the Tribunal make orders pursuant to section 58 of the FOI Act and section 131 of the ADT Act. The matter is to be listed for further directions to determine how these issues are to be resolved. 3 The matter came back before me on 2 February 2009 in relation to those issue and each of the parties has provided further submissions. Applicable legislation 4 Section 88 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") provides: 88 Costs (1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section. (1A) 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 it is fair to do so having regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal, or (vi) vexatiously conducting the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) any other matter that the Tribunal considers relevant. (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 a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 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. 5 Section 131 of the ADT Act provides: "131 Contempt of Tribunal (1) The Tribunal may report the following matters to the Supreme Court: (a) if a person fails to attend in obedience to a summons after having been served with a summons to attend before the Tribunal as a witness, or (b) if a person fails to produce any document or other thing in the person's custody or control that the person is required by a summons to produce after having been served with a summons to attend before the Tribunal, or (c) if a person refuses to be sworn or to make an affirmation or refuses or otherwise fails to answer any question that is put to the person by the Tribunal after being called or examined as a witness before the Tribunal, or (d) if a person wilfully threatens or insults: (i) a member, assessor or officer of the Tribunal, or (ii) any witness or person summoned to attend before the Tribunal, or (iii) a practising legal practitioner or other person authorised to appear before the Tribunal, or (e) if a person misbehaves himself or herself before the Tribunal, or (f) if a person interrupts the proceedings of the Tribunal, or (g) if a person obstructs or attempts to obstruct the Tribunal, a member of the Tribunal or a person acting with the authority of the Tribunal in the exercise of any lawful function, or (h) if a person publishes, or permits or allows to be published, any evidence given before the Tribunal or any of the contents of a document produced at a hearing that the Tribunal has ordered not to be published, or (i) if a person publishes, or permits or allows to be published, any evidence given before the Tribunal at a hearing held in private or any of the contents of a document produced at a hearing held in private, except to an officer of the Tribunal or as permitted by the Tribunal or by the regulations, or (j) if a person does any other thing that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court. (2) If the Tribunal reports a matter to the Supreme Court under subsection (1), the Court may deal with the matter as if it were a contempt of the Court. However, a person is not liable to be punished for contempt under this subsection if the person establishes that there was a reasonable excuse for the act or omission concerned. (3) Subsection (1) (i) does not apply to an officer of the Tribunal in relation to evidence or contents of documents published to other officers or to members of the Tribunal." 6 Section 58 of the FOI Act provides: "58 Tribunal may report improper conduct If, as a result of a review application, the Tribunal is of the opinion that an officer of an agency has failed to exercise in good faith a function conferred or imposed on the officer by or under this Act, the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister for the agency." 7 Section 6(3) of the FOI Act provides: "(3) In this Act: (a) a reference to a function includes a reference to a power, authority and duty, and (b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty." Costs 8 Mr Potier seek an order for costs. The Department has resisted that application and asserts that if costs are to be awarded it should be an order in favour of the Department. 9 Mr Potier submits that the concept and practice of the FOI Act is clear. He says that the legislation requires full compliance. It is intended that an agency identify all the documents that fall within the scope of an application prior to the determination. If an agency determines to withhold documents it could do so only after confirming their existence. The internal review process allows for a review of the determination. In the event that the applicant is dissatisfied then they can apply to the Tribunal for a determination in regard to the question of whether the agency has acted correctly in withholding the documents. 10 He says that in this matter the Department did not comply with the FOI Act. The initial search was inadequate and failed to identify documents that were ultimately produced. He says that those documents should have been located and released at the time of the initial determination. He says that the Department has still not provided him with documents that it had a positive and binding obligation to release at the initial determination. 11 He submits that the Department should be held responsible for its failures. He says that the Department's failure to comply with the FOI Act and the considerable time and effort that he had to expend to finally obtain the documents amounts to 'special circumstances' warranting an award of costs in his favour. 12 The Department submits that the Tribunal's discretionary power to award costs can only be exercised where the Tribunal is satisfied that the criteria set out in section 88 of the ADT Act are met. Ms Anderson referred to the views expressed by the Appeal Panel in Director General, Department of Education and Training -v- Simpson (GD) [2001] NSWADTAP 6 at paragraphs [7] – [9]: 7 … [T]he purpose of the award of costs is to assist parties in respect of the engagement of legal representation. There is clear authority that costs orders cannot be made in favour of unrepresented applicants in respect of (what might be described as) the inconvenience and loss of income associated with their attendance at proceedings to represent themselves: Cachia v Hanes (1994) 179 CLR 403. [Now see also, Atlas v Kalyk [2001] NSWCA 10.] ... 8 However, he did press claims in respect of expenses associated with the proceedings, and … our view is … that it would be a proper exercise of the costs' discretion in respect of an unrepresented applicant to compensate the applicant in regard to out-of-pocket expenses of the kind that Mr Simpson described which include, for example, photocopying and postage and obtaining of professional typing services. 9 For Mr Simpson to succeed he needs to show that there are 'special circumstances in this case warranting an order for costs.' 13 The Department submits that there are no circumstances that warrant an order that the Department reimburse Mr Potier for any out-of- pocket expenses that he may have incurred. 14 Ms Anderson submits that Mr Potier only achieved limited success in regard to his application and his pursuit of the question of the adequacy of the searches undertaken by the Department was unsuccessful as that was not within the Tribunal's jurisdiction. She says that in such circumstances, Mr Potier has put the Department to unwarranted expense and, accordingly, if an order for costs is to be made, it should be made in favour of the Department. Discussion 15 The Tribunal's power to award costs is governed by section 88 of the ADT Act. During the course of this matter section 88 of the ADT Act provided that 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". There are numerous decisions on what constituted "special circumstances warranting an award of costs". 16 However, as at 1 January 2009 section 88(1) was amended and new sub-sections inserted. The amended provision applies to applications and proceedings that 'were made on or commenced, but not finally determined' before that date. 17 Pursuant to the amended section 88 the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the factors set out in subsections 88(1A)(a) - (e). 18 The section 88 amendments postdate the decision in Simpson. The question of whether the costs' discretion under the amended section 88 extends to the discretion to compensate an unrepresented applicant in regard to out-of-pocket expenses has not been determined. However, in light of the recent Court of Appeal decision in Murphy v Arnoldus-Lewis & Anor [2009] NSWCA 142, this must be in doubt. 19 In Corrigan & Gibson v Watson [2009] NSWADT 110, the Tribunal discussed the new provisions. The Tribunal pointed out that: 8 Section 88 is not specifically referred to in the Attorney General's second reading speech of the Administrative Decisions Tribunal Amendment Bill 2008 (Bill), which introduced it. However, the notes to the Bill state that: Currently, section 88(1) provides that costs may be awarded only if the Tribunal is satisfied that there are special circumstances. The new provisions are based largely on the provisions of s 109 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) of Victoria. 9 Section 88 begins with a general statement of principle that each party to proceedings is to bear his or her own costs. That principle is different from the principle that applies in courts. In the absence of special circumstances, courts generally exercise their discretion to award costs in favour of the successful party, that is 'costs follow the event': Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 1 Qd R 156 at 207-208. Section 88 gives the Tribunal a discretion to award costs 'but only if it is satisfied that it is fair to do so' having regard to certain matters which are listed at (a) to (e). Those matters include 'any other matter that the Tribunal considers relevant'. Contrary to the Respondent's submission, decisions of courts in relation to the circumstances in which it is appropriate to award costs on an indemnity basis, are of limited relevance to proceedings in the Tribunal. 10 The Tribunal is empowered by sub-section (2) to determine by whom and to what extent costs are paid. Costs are usually awarded on what is known as a 'party/party' basis, that is, the costs that are 'fair and reasonable' for the work: Legal Profession Act 2004, s 364(1). ... 11 Section 109 of the VCAT Act has been in operation for more than 10 years. Given the similarity of that provision to s 88, decisions of VCAT are relevant when interpreting s 88. … 20 An application for costs must be founded on the party's conduct in the proceedings currently before the Tribunal. The issues that Mr Potier has raised as supporting his application for costs are either not ones that can be taken into account in regard to this costs application or are not persuasive. 21 The factors set out in subsections 88(1A)(a) - (e) concern the manner in which a party has conducted the proceedings. In my view, the Department's failure to identify all the documents that fall within the scope of the FOI application is not conduct in these proceedings that can give rise to an order under section 88. In order to warrant an order for costs the Department must have conducted the proceedings in a way that unnecessarily disadvantaged Mr Potier. Mr Potier has not identified factors that I find sufficiently persuasive to shift from the general principle that each party to proceedings is to bear his or her own costs. 22 I note however that on several occasions, hearings in this matter were either delayed or abandoned as a consequence of the Department's failure to make arrangements for Mr Potier to attend the hearing. It seems that this was a consequence of problems in the internal administrative processes of the Department. On each occasion the Department's legal advisors attempted to resolve this issue but their efforts were not always successful. As a consequence, hearings were adjourned. In my view this is conduct of the kind that falls within the scope of subsection 88(1A)(a)(iv) i.e. "causing an adjournment". The Department's failure to make arrangements for Mr Potier to attend the hearing has been responsible for prolonging unreasonably the time taken to complete the proceedings: subsection 88(1A)(b). 23 In other circumstances, this conduct might give rise to an order for costs in favour of an applicant. However, while I accept that Mr Potier has been inconvenienced by this conduct, I am not satisfied that it has resulted in his incurring out-of-pocket expenses that should be compensated. 24 In my view, this is not a matter where an order for costs is warranted. Accordingly, each party is to bear their own costs. Section 58 of the FOI Act 25 Mr Potier alleged improper conduct on the part of some officers of the Department and he requested that the Tribunal bring the matter to the attention of the responsible Minister pursuant to section 58 of the FOI Act. Section 58 provides that if, as a result of a review application, the Tribunal takes the view that an officer of an agency has failed to exercise a function conferred by the FOI Act in good faith, the Tribunal may take appropriate measures to bring the matter to the attention of the responsible Minister for the agency. 26 Mr Potier asserts that the Department failed to comply with Orders of the Tribunal in regard to provision of material to him, and that a substantial amount of documentation was provided only after protracted conferences and Hearing on the matter. He submitted that the initial response to his FOI request was woefully lacking and as such entirely contrary to the objects of the FOI Act. 27 Ms Anderson submits that section 58 of the FOI Act is directed towards an individual officer of an agency who has failed to exercise in good faith a function conferred or imposed on them by or under the FOI Act. She had no instructions to act on behalf of individual officers and submitted that the appropriate approach to be taken by Mr Potier would be to identify the officer or officers concerned and to particularise his allegations in regard to each officer. 28 Mr Potier indicated that he has not taken that approach and urged the Tribunal to adopt a common sense approach to the issue. He submitted that it is impractical to identify individual actions of officers and that the Department should be held responsible for its officers' failures. Discussion 29 Section 58 of the FOI Act provides the Tribunal with the discretion to bring matters to the attention of the responsible Minister if it is of the opinion that an officer of an agency has failed to exercise a function in good faith. The Tribunal may form that opinion without any application by a party and without the particularisation that Ms Anderson has suggested. 30 Throughout the course of this matter Mr Potier has expressed concern about the manner in which various officers of the Department had dealt with his requests and had dealt with the application brought to the Tribunal. I formed the view that there was substance to some of Mr Potier's concerns. However, it is my view that the conduct in issue did not concern a function conferred or imposed on the officers by or under the FOI Act. Rather, it represents a failure of officers within the Department to make the administrative arrangements to ensure that the matter before the Tribunal could proceed efficiently. 31 In the circumstances, I do not propose to bring the matter to the attention of the responsible Minister pursuant to section 58 of the FOI Act. Section 131 of the ADT Act 32 Mr Potier seeks a report from the Tribunal to the Supreme Court pursuant to the provisions of section 131(1) of ADT Act. 33 Mr Potier seeks a report to the Supreme Court in relation to the way that the Department dealt with this Application. He relies on both oral and written submissions and asserts that the Department has ignored clear, concise, directions with no excuse and this should not be tolerated. 34 He referred in particularly to the Department's failure to arrange for him to attend the Hearing at the Central Local Court on 20 February 2008. Mr Potier asserts that a Direction was given that he should attend at 9.00 am on that day but that he did not arrive until after 10.15 am. He further asserts that the facilities available to him were deliberately designed to inhibit his ability to deal with the matters and that they did inhibit his ability to do so. 35 Ms Anderson submits that section 131 of ADT Act is directed towards conduct of an individual officer. She had no instructions to act on behalf of individual officers and submitted that the appropriate approach to be taken by Mr Potier would be to identify the officer or officers concerned and to particularise his allegations in regard to each officer. 36 Mr Potier stated that he considers it inappropriate to cite the conduct of individuals, as all are the servants and agents of the Department. He says that he considers that the responsibility lies with the Department. Discussion 37 The provisions of section 131(1) of the ADT Act deal with conduct which may constitute contempt of the Tribunal, and give the Tribunal discretion to report a variety of matters that may constitute contempt to the Supreme Court. 38 It is clear that the Tribunal does not have the power to determine the issue of contempt itself. If the matters that have emerged in the substantive hearing of the application are sufficient to allow the Tribunal to be satisfied that one of the criteria listed in Section 131(1) have been met, the discretion to report confers a power to be exercised. 39 For present purposes the relevant subsection is section 131(1)(j) of the ADT Act. I must be satisfied that something has been done that, 'if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court'. 40 Judicial Member Rickards considered section 131(1)(j) of the ADT Act in the matter of Makris v Lafiatis and anor [2008] NSWADT 189 and discussed the approach to be taken by the Tribunal in the following terms: 6 My function in relation to the subject application is to first make a decision as to whether the alleged conduct as presented to the Tribunal at this stage could amount to reportable conduct pursuant to section 131 of the ADT Act. There are no restrictions as to the parties who may be the subject of a report under section 131(1). … 8 I respectfully agree with the observations of Judicial Member Molloy in Daintree Café Pty Ltd v Jacfun Pty Ltd (2002) NSW ADT 188 , a decision which also involved consideration of section 131(1)(j) , that: "30 In the context of proceedings for contempt it is important, in my view, that the Tribunal be satisfied that the alleged contempt is of such a grave, serious and weighty nature that it would on balance require the Supreme Court to do something positive about it rather than treating the conduct as technical contempt which would be unlikely to attract a penalty (see, for example, Klewer v District Court of NSW CA 40801/97 (1998) NSWSC 396)." 9 In dealing with conduct alleged to fall within the "catch all" provisions of section 131(1)(j) of the ADT Act, the Tribunal first has to be satisfied that the requirements for contempt at common law are met and, if so, a second decision then has to be made as to whether the matter should be remitted to the Supreme Court (see the reference at paragraph 32 in Daintree Café Pty Ltd to the decision of the Court of Appeal in Registrar of the Court of the Appeal v Maniam (No.1) [ 1991] 25 NSWLR 459 setting out the appropriate procedure to be adopted in relation to references for contempt by District Court judges to the Supreme Court pursuant to section 203 of the District Court Act 1973). 10 In all proceedings for contempt of court, the contempt needs to be proved beyond reasonable doubt (see the decision of the High Court in Witham v Holloway (1995) 183 CLR 525, at paragraph 29). 41 I agree with Judicial Member Rickards summary of the approach to be taken to this consideration. Having considered the facts of this matter and the law and procedure to be applied as set out above, I am not satisfied to the requisite standard that the conduct to which Mr Potier has referred could amount to contempt of the Tribunal. 42 I note that Mr Potier's assertion that the Department was required to deliver him to the Central Local Court at 9 a.m. on 20 February 2008 is incorrect. The Order to the Department under section 77 of the Crimes (Administration of Sentences) Act 1999 required that Mr Potier be produced to the Court on Wednesday 20 February 2008 at 10 a.m. In the circumstances, his arrival at 10.15 is not a significant failure to comply with that Order and would not be contempt of a court. 43 I accordingly decline to report the conduct pursuant to section 131(1) of the ADT Act. Orders 1. Mr Potier's application for the Tribunal to bring matters to the attention of the responsible Minister pursuant to section 58 of the Freedom of Information Act 1989 is refused. 2. Mr Potier's application for a report from the Tribunal to the Supreme Court pursuant to section 131(1) of the Administrative Decisions Tribunal Act 1997 is refused. 3. No order for costs.