McCabe v Workers Compensation Commission [2012] NSWADT 74

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: McCabe v Workers Compensation Commission [2012] NSWADT 74 Hearing dates: On the papers Decision date: 26 April 2012 Jurisdiction: General Division Before: N Isenberg, Judicial Member Decision: The Tribunal declines to make any order as to costs. Legislation Cited: Administrative Decisions Tribunal Act 1997 Cases Cited: Challita v NSW Department of Education and Training [2009] NSWADTAP 70 Category: Costs Parties: David McCabe (Applicant) Workers Compensation Commission (Respondent) Representation: McCabe Partners (Applicant) Crown Solicitor (Respondent) File Number(s): 113218

reasons for decision

Background 1By letter dated 26 May 2011, the applicant sought access a series of categories of documents he believed the respondent held. Some documents were provided to him but other categories of documents were said not to be held by the respondent. The applicant sought review by the Tribunal. A series of planning meetings were held and the respondent agreed to search for further documents and some were located. The respondent's Manager, Executive Services, made 3 successive affidavits in relation to the ongoing searches. 2As I identified in the decision, the applicant's complaint was that the search for the documents was inadequate. The applicant had no confidence that all relevant material had been provided, especially given the piecemeal provision of documents, and that it was only on further searching that additional documents were provided. 3After hearing the respondent's evidence, I found that there were reasonable grounds to believe that there are additional documents and that the respondent did not undertake reasonable searches to find the documents. 4The applicant seeks an order for costs. He acknowledged that the general rule is that each party bears his or her own costs, but invited the Tribunal to exercise it discretion to order otherwise if it were satisfied that it is fair to do so having regards to the matters set out in s.88 (1A) of the Administrative Decisions Tribunal Act 1997 (ADT Act). The respondent submitted that there was no reason to depart from the usual costs regime, namely that each party pay their own costs.