CITATION: Cunliffe v Darkinjung Local Aboriginal Land Council (No 2) [2010] NSWADT 185 DIVISION: General Division APPLICANT Ian Cunliffe PARTIES: RESPONDENT Darkinjung Local Aboriginal Land Council FILE NUMBER: 093149 HEARING DATES: On the papers SUBMISSIONS CLOSED: 22 February 2010 DATE OF DECISION: 27 July 2010 BEFORE: Montgomery S - Judicial Member CATCHWORDS: Costs LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Argus Industrial Group Holdings Ltd v Chief Commissioner of State Revenue [2010] NSWADT 136 AT v Commissioner of Police [2010] NSWCA 131 Baulderstone Hornibrook Engineering Co Pty Ltd v Gordon Runoff Ltd (No 2)[2009] NSWCA 12 Bradford v Darkinjung Local Aboriginal Land Council [2010] NSWADT 45 Challita v NSW Department of Education and Training (GD) [2009] NSWADTAP 70 CASES CITED: Corrigan & Gibson v Watson [2009] NSWADT 110 Cunliffe v Darkinjung Local Aboriginal Land Council [2010] NSWADT 67 Mahenthirarasa v State Rail Authority of NSW (No 2) [2008] NSWCA 201; 72 NSWLR 273 Rodger Hoskin v Department of Education and Training 21 March 2003 VCAT Reference: G1256/2003 Salon Today Pty Limited v. M.M.I.R. Pty Limited [2009] NSWADT 71 Sharlene Kelso v Department of Human Services 15 September 2003 VCAT Reference: G306/2003 APPLICANT In person REPRESENTATION: RESPONDENT P Woods, solicitor ORDERS: The Applicant is to pay the Respondent's costs, as agreed or assessed, for the day of hearing on 1 February 2010 REASONS FOR DECISION 1 By letter dated 30 March 2009, the Applicant applied to the Darkinjung Local Aboriginal Land Council ("the Land Council") pursuant to the Freedom of Information Act 1989 ("the FOI Act"). His application was as follows: Under the Freedom of Information Act 1989 (NSW) I request all documents, if any, which demonstrate the truth of the assertion made by Mr Patrick Woods to the Administrative Decision Tribunal's FOI planning meeting last Wednesday, 25 March 2009, that $42 million which had been raised by DLALC from the redevelopment of land at North Entrance has been reduced to $29m, including any independent accounting advice that would support Mr Woods' statement. 2 A preliminary issue arose with respect to the Tribunal's jurisdiction to hear this matter. My decision on that issue was published as Cunliffe v Darkinjung Local Aboriginal Land Council [2010] NSWADT 67. 3 The remaining issue for determination is that of costs. The Respondent has submitted that an order for costs should be made in its favour. The Applicant submitted that either there should be no order as to costs or else that costs should be awarded in his favour. Applicable legislation 4 Section 88 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") governs costs in this case. The usual courts rule of costs following the event is modified by section 88 in favour of a usual rule that the parties meet their own costs, unless one of the exceptions in section 88 applies. Section 88 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. The Applicant's Case 5 The Applicant submits that the Victorian Civil and Administrative Tribunal ("VCAT") approach to costs in FOI applications should be followed. In support of that submission, he referred to views expressed in Corrigan & Gibson v Watson [2009] NSWADT 110 where the Tribunal observed at paragraph [8]: "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." 6 The Applicant submits that the VCAT approach is that costs should not be awarded against genuine FOI applicants unless their behaviour has involved some abuse of process. He relies on a number of VCAT decisions in support of that submission. He argues that the approach of allowing considerable leeway to applicants in FOI matters is consistent with the constitutional importance of FOI to the open, transparent and accountable operation of public sector organizations. 7 In particular he relies on two unreported VCAT decisions in which a respondent agency was ordered to pay an applicant's costs: Sharlene Kelso v Department of Human Services 15 September 2003 VCAT Reference: G306/2003; Rodger Hoskin v Department of Education and Training 21 March 2003 VCAT Reference: G1256/2003. 8 In each of those cases, VCAT had considered behaviour on the part of the agency that was "significantly poor" and in the circumstances the Tribunal was satisfied that it was fair to make an order for casts. 9 The Applicant says that in this matter his FOI application sought evidence to support Mr Woods' assertion that he and Mr Hanrahan had caused the assets of the Respondent to be reduced from $42 million to $29 million. He contended that such a reduction should be well documented by the Respondent, its accountants and auditors. He expected that at most there would be one or two documents that contained the material requested. In fact, Mr Woods told the Tribunal that there were two documents that satisfied the request - the Final Report of the former Administrator of Darkinjung Local Aboriginal Land Council and the 24th Affidavit of Peter Hillig sworn on 19 December, 2007 in NSW Supreme Court matter 2842106. 10 The Applicant argues that rather than behaving as a public sector entity should, and quickly providing those documents, or claiming any relevant exemptions, throughout this matter the Respondent has been entirely uncooperative. 11 The Applicant says that there has been no plausible suggestion that his conduct has disadvantaged the Respondent in any of the ways listed in section 88(1A)(a) or by anything analogous. To the contrary, he says that, in disregard of the letter and policy of the FOI Act, on a number of occasions the Respondent has failed to comply with orders of the Tribunal and put obstacles in the way of the Applicant. He asks the Tribunal to note the Respondent's failure to file and serve submissions by 4 September 2009 and thereby forced a Planning Meeting set down for 9 September 2009 to be adjourned and also forced an adjournment of the proceedings by failing to appear when the matter was set down for hearing at 10 am on 1 February 2010. 12 He submits that there is a litany of neglect by the Respondent which has made what was a simple FOI request into a legally novel and convoluted proceeding. He contends that in light of these matters, the Respondent should pay his costs. The Respondent's Case 13 The Respondent submits that an order for costs should be made in its favour. Mr Woods contends that the Tribunal should order the Applicant to pay the Respondent's costs of these proceedings generally under section 88(1A)(a) of the ADT Act or more specifically under sub-sections (v) and (vi) of that section. 14 Mr Woods submits that it was made clear to the Applicant, on several occasions, that if his request was genuinely confined to seeking documents that show how the Respondent's assets were reduced from $42 million to $29 million, he needed to refer to the two identified documents. However, he says that the Applicant persisted with asking for additional documents, in the face of the inevitable outcome to the proceedings. He argues that the Applicant's approach has been to seek to have the Respondent review every file document for each FOI request. He says that the amount of material to be reviewed each time consists of hundreds of volumes of material, and asserts that the Applicant's requests are made for no other reason than to harass and annoy those opposing him in litigation new pending in the Supreme Court. 15 Mr Woods submits that in a Planning Meeting before the hearing he had requested that this matter be dealt with on the papers. The Applicant opposed that approach, saying he wanted to cross-examine Mr Woods on the Affidavit he had filed and served in the proceedings. However, at the hearing the Applicant did not seek to cross-examine Mr Woods, making the hearing a waste of time and costs. 16 He submits that the Tribunal is entitled to consider whether the Applicant has vexatiously conducted the proceedings, especially in requiring a hearing to cross-examine Mr Woods, and then not doing so, and whether the Applicant has been responsible for unreasonably prolonging the time take to complete the proceedings. 17 It is argued that the Tribunal could conclude that requiring the hearing, then not utilising it for the purpose for which it was required, had the effect of unreasonably prolonging the proceedings as contemplated in section 88, and could order the Applicant to pay the costs of the proceedings, or that part of the proceedings, on that basis. 18 Also relevant to this consideration is the provision of section 88(1A)(c). The Respondent submits that the Applicant's application had no tenable basis in fact or law. He ultimately took the matter all the way to the end of a pointless contested hearing before finally conceding there was no jurisdiction in the Tribunal for it to entertain the claim he had made, and no basis for the Tribunal to entertain the claim he had not made. 19 Mr Woods submits that any one of those factors is capable of weighing on the discretion of the Tribunal in relation to costs. Taken together for their several effects, they militate significantly in an order being made for the Applicant to pay some or all of the Respondent's costs. 20 Mr Woods submits that the Applicant has been extravagantly wasteful of the Respondent's time and resources. He says that the Applicant's application for his costs to be met by the Respondent is hopeless and that the Applicant's submissions ought to be rejected. 21 Mr Woods further submits that VCAT decisions upon which the Applicant has relied do have any particular application to the costs position that is being contended for by the Applicant. Consideration 22 The provisions of section 88 of the ADT Act have been considered in numerous cases. The starting point in this Tribunal as to costs is that as a general rule each party should bear its own costs. It is likely that costs will not be ordered in consequence of conduct falling within section 88(1A) unless that conduct is of a serious nature and such that there is significant prejudice to the other party in consequence: Argus Industrial Group Holdings Ltd v Chief Commissioner of State Revenue [2010] NSWADT 136 at paragraph [30]. 23 As Spigelman CJ noted in Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300 (25 October 2007) at [79]: '79 However, unlike many other Class 1 proceedings it cannot be said that the Court simply takes the place of the primary decision-maker in an appeal under Pt 9.2 of the POEO Act. In my opinion, the usual position on a merits review that an appeal tribunal stands in the shoes of the primary decision-maker is a significant element in the practice of such tribunals not to exercise such power, if any, to award costs as are conferred upon them. Administrative decision-makers do not award costs. Where a judicial or quasi-judicial function is expressly placed in the position of such a decision-maker then it is more appropriate that it adopt the same general approach.' 24 Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council was cited favourably by the Appeal Panel in Challita v NSW Department of Education and Training (GD) [2009] NSWADTAP 70. 25 The Court of Appeal considered the provisions of section 88 of the ADT Act in its recent decision in AT v Commissioner of Police [2010] NSWCA 131. Basten JA, delivering the judgment of the Court, referred to 'the force of the general principle that each party should bear its own costs in the Tribunal, a principle applicable at both first instance and before the Appeal Panel'. He said: "20 The appellant contended that, if successful in this Court, it was "fair" that she should have her costs at both levels in the Tribunal, the Appeal Panel having determined that there was an error of law on the part of the Tribunal and this Court having determined that the Appeal Panel erred in law, in not setting aside the original Tribunal decision. The complexity was revealed, she submitted, by the fact that the respondent, the Privacy Commissioner and the appellant had each argued for a different construction of the relevant legislative provisions. Thus, two agencies of the State took differing views, but the Appeal Panel rejected both, one being that preferred by the agency having responsibility for the legislation, namely the Privacy Commissioner. … 32 The appellant's submissions, identified at [20] above should be accepted: they strongly favour the individual appellant obtaining reimbursement for part at least of her legal expenses so far. The fact that the appellant has been successful at both levels of appeal is a matter which can be taken into account under sub-s (1A)(e). A further factor to be taken into account is that the respondent, being a State agency, was also required to act as a model litigant: Mahenthirarasa v State Rail Authority of NSW (No 2) [2008] NSWCA 201; 72 NSWLR 273 (Basten JA, Giles and Bell JJA agreeing). That is not to say that the Commissioner was not entitled to insist that statutory procedures be complied with. However, where the statutory scheme was entirely unclear, and the Commissioner's construction was not accepted, it is a factor which militates in favour of the Commissioner bearing the costs of the member of the public seeking to avail herself of a statutory right of review. 33 That approach does not diminish the force of the general principle that each party should bear its own costs in the Tribunal, a principle applicable at both first instance and before the Appeal Panel. Although an order varying the general rule may be made "only if" the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order. The criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. The circumstances in which fairness may be identified are indicated by the specific attributes listed in sub-s (1A), but subject to the generality of paragraph (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b)-(g) of the Tribunal Act." 26 In Salon Today Pty Limited v. M.M.I.R. Pty Limited [2009] NSWADT 71 Judicial Member Molloy commented on the generality of paragraph (e). He stated at paragraph [77]: 77 But the real key to understanding the Section 88 amendments is Section 88(1A) (e): "any other matter that the Tribunal considers relevant". These are very, very wide words, quite deliberately chosen by the Parliament, which quite clearly enjoin this Tribunal to look very carefully at the concept/principle of fairness and to widen the scope, without restriction, of the various aspects of the litigation – indeed, all the aspects of the litigation – that may result in a finding that the Tribunal is satisfied that it is fair to award costs. In my opinion it would be wrong to attempt to restrict Section 88(1A)(e). 27 Parties to litigation are expected to act reasonably in the running, and the resolution by compromise, of litigation. Stubborness, intransigence and unrealistic and unreasonable expectations and demands can lead to unnecessary and unreasonable demands on scarce public resources: Baulderstone Hornibrook Engineering Co Pty Ltd v Gordon Runoff Ltd (No 2)[2009] NSWCA 12 per Allsop P at paragraph [18]. 28 The present matter is a matter in which the Respondent, being a State agency, was required to act as a model litigant. In that regard also see comments by Basten JA in Mahenthirarasa v State Rail Authority of NSW (No 2) at paragraphs [15] – [22]. In my view, the Respondent has not conducted these proceedings in the manner that is to be expected from a model litigant. As the Applicant correctly observed, I have previously commented on the manner in which the Respondent has conducted proceedings in this Tribunal: Bradford v Darkinjung Local Aboriginal Land Council [2010] NSWADT 45. 29 As was the case in Bradford, the background to these proceedings and manner in which they have been conducted does neither side credit. Both parties generally conducted themselves in a manner that disadvantaged the other party. This overshadows circumstances in which a costs order in favour of the Respondent might have otherwise been warranted. 30 However, the Respondent bears the additional responsibility of being required to act as a model litigant. In my view, the failure to meet this standard is a factor to be considered pursuant to subsection 88(1A)(e) and it militates against the Respondent. With a single exception, in light of the conduct of the parties towards each other and the requirement of fairness, I do not consider that a costs order is warranted. It is my view that the general principle that each party should bear its own costs in the Tribunal should stand. 31 The single exception is that I agree with Mr Woods' submission that the matter could have been determined without the need for the hearing on 1 February 2010. For the reasons argued by Mr Woods, it is my view that the criterion of "fairness", taking into account the compensatory purpose of an award of costs, warrants an order that the Applicant pay the Respondent's costs of attending the hearing on 1 February 2010. Order 1. The Applicant is to pay the Respondent's costs, as agreed or assessed, for the day of hearing on 1 February 2010 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.