Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Miriani v Commissioner of Police, NSW Police Force [2013] NSWADT 59 Hearing dates: On the papers Decision date: 13 March 2013 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The Applicant it to pay the amount of $980 towards the costs that the Respondent incurred in relation to the dismissal application. That amount is payable 28 days after the date of these reasons. Catchwords: Costs Legislation Cited: Administrative Decisions Tribunal Act 1997 Government Information (Public Access) Act 2009 Cases Cited: AT v NSW Police [2010] NSWCA 131 Miriani v NSW Police Force [2012] NSWADT 149 Category: Costs Parties: Joe Miriani (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: J Miriani, Applicant in person C Tipene, Sparke Helmore File Number(s): 113153 & 113185 reasons for decision 1GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): On 3 July 2012 I dismissed these matters pursuant to section 73(5)(g)(iv) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") for want of prosecution. My reasons for decision are published as Miriani v NSW Police Force [2012] NSWADT 149. 2The Respondent now seeks an order for the Applicant to pay the Respondent's costs. Tribunal's power to award costs 3Section 88 of the ADT Act provides the Tribunal has power to award costs as follows: 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. 4As can be seen from the terms of subsection 88(1), the general rule is that each party pay its own costs of the proceedings. However, the Tribunal does have power (i.e. a discretionary power) to award costs if it is satisfied that it is fair to do so, having regard to the matters set out in subsection 88(1A). 5In AT v NSW Police [2010] NSWCA 131, the Court of Appeal considered the application of section 88 of the ADT Act. At paragraph [26], the Court of Appeal held that the criterion of fairness was "not qualitatively different" from "the exercise of an unfettered discretion". At [33], the Court emphasised the general principle that each party should bear its own costs adding that: 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 subs (1A), but subject to the generality of para (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. The Respondent's case 6The Respondent submits that the Applicant's conduct, which resulted in the proceedings being dismissed for want of prosecution, satisfies the circumstances which are appropriate for an award of costs in that: (a) the Applicant conducted the proceedings in a way that unnecessarily disadvantaged the Respondent, by failing to comply with an order or direction of the Tribunal without reasonable excuse: section 88(1A)(a)(i) of the ADT Act); and (b) the Applicant was responsible for prolonging unreasonably the time taken to complete the proceedings (under section 88(1A)(b) of the ADT Act).. 7The Respondent contends that the Applicant breached several orders of the Tribunal to file and serve evidence and submissions. In particular the Respondent points to: (a) non-compliance with orders made on 6 September 2011. The Applicant failed to file evidence or submissions in accordance with the Tribunal's orders; (b) non-compliance with orders made on 14 February 2012. At a planning meeting held on 14 February 2012, the Tribunal made a further order for the Applicant to file and serve any evidence and written submissions in reply by 27 March 2012, which did not occur; and (c) non-compliance with orders made on 8 May 2012. At a further planning meeting held on 8 May 2012, the Tribunal made a further order that the Applicant to file and serve evidence and written submissions in reply by 22 May 2012. This did not occur. 8The Respondent concedes that it was late in complying with the orders made on 6 September 2011. 9The Respondent also submits that the Applicant's failure to attend planning meetings and directions hearings of the Tribunal, without notice to the Tribunal or the Respondent, unreasonably prolonged the time taken to complete the proceedings. In particular, the Respondent points to the Applicant's failure to attend: (a) the planning meeting held on 9 August 2011; and (b) the directions hearing held on 3 July 2012. 10The Respondent submits that the Tribunal should also have regard to the following, under section 88(1A)(e) of the ADT Act: (a) the Respondent gave the Applicant written notice that if he failed to file and serve his evidence and submissions, the Respondent would seek to have the proceedings dismissed and would seek costs; and (b) the Respondent was successful in having the proceedings dismissed for want of prosecution on 3 July 2012. The Respondent seeks an order for the Applicant to pay the 11Respondent's costs of, or incidental to these proceedings, in the amount of $22,130.60 (exclusive of GST). 12The Respondent has prepared an outline of its costs, which it says details the time spent in defending these proceedings. This outline includes the amount of time charged to the Respondent whilst Ms Tipene was contracted to the Respondent after Sparke Helmore Lawyers were engaged on 30 April 2012. The Applicant's case 13The Applicant submits that Ms Tipene was contracted by the Respondent as an in-house solicitor. 14In regard to the issue of his failing to comply with orders or directions without reasonable excuse, the Applicant submits that: the progress of the matters in the Tribunal shows that both he and the Respondent failed the same number of times to comply with orders of the Tribunal; the Respondent failed to comply with directions made on 6 September 2011 and 25 November 2011; he failed to comply with the directions made on 14 February 2012 and 8 May 2012. He was unable to file and serve evidence and submissions before 14 February 2012 because of the Respondent's failure to comply with its directions; his deteriorating mental and physical health made his compliance with the Tribunal's orders difficult. The Respondent was aware of the circumstances and contacted solicitors who he was intending to retain. All three legal practitioners later declined to represent him. He was ultimately unable to comply with the Tribunal's orders for his failure to retain legal representation. 15In regard to the issue of whether he has been responsible for prolonging the proceedings, the Applicant submits that: the progress of the matters in the Tribunal shows that the Respondent took 155 days to file and serve evidence and submissions in these matters. On the other hand, the Applicant had 140 days counting from 14 February 2012 to the date of dismissal; the evidence suggests that both parties were conducting the proceedings in a very similar way, without being responsible for prolonging unreasonably the time taken to complete the proceedings; 16In regard to the issue of whether there are other relevant considerations, the Applicant submits that: the Respondent has made an incorrect assertion about the Applicant's purported failure to attend planning meetings and directions hearings of the Tribunal without notice; he attended the Tribunal on 3 July 2012, but was unable to find the correct hearing room and consulted with the Registry. he contends that he was told about the correct room shortly after the very brief hearing had concluded. Discussion 17It is not in dispute that the Tribunal's jurisdiction to award costs is pursuant to section 88 of the ADT Act. Section 88(4) provides that "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. 18'Costs' refers to the professional fees charged to a party by that party's legal representative or by a professional representation who is not a lawyer. 'Costs' includes reasonable expenses ('disbursements') actually paid in connection with the proceedings: Administrative Decisions Tribunal Costs Guideline. 19In the present case, the issue before the Tribunal is whether or not it is fair to award costs to the Respondent in relation to the proceedings having regard to the factors in subsection 88(1A). 20The substantive matter related to a determination under the Government Information (Public Access) Act 2009 ("the GIPA Act"). Section 105 of the GIPA Act provides: 105 Onus on agency to justify decisions (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. ... 21In my view, once the substantive matter was commenced, the onus was on the Respondent to prove its case. The witness statements filed on behalf of the Respondent was in furtherance of meeting that onus. The costs in preparing that evidence would have been incurred had the matter not been dismissed and are not related to the Applicant's failure to prosecute the matter. 22For that reason I do not accept that fairness requires that the Respondent should be able to recover its costs to the extent it seeks. I do not accept that the Applicant's failure has been the cause of the majority of those costs. 23There was some non-compliance with some directions of the Tribunal on either side. However, initially the Respondent was able to prepare its case without serious delay as a result of on the Applicant's failure to file material. However, ultimately the Respondent was ultimately placed in the position that it was unaware what case it needed to meet from the Applicant. Similarly, the Respondent's costs of preparing for and attending planning meetings were wasted in circumstances where the Applicant had failed to prosecute his case. 24I do not consider that this was a case where the Applicant was unnecessarily disadvantaged by the failure by the Respondent to comply with timetables. Nor do I consider that it is significant that Ms Tipene was contracted to the Respondent as an in-house solicitor. It is not in issue that she was appearing on behalf of the Respondent. Cost will have been incurred regardless of her employment status. 25The matter was ultimately dismissed because of the Applicant's failure to prosecute it. Further, as noted above, the Respondent put the Applicant on notice that it would seek to have the matter dismissed and even after that notice the Applicant failed to file material and no reasonable explanation was given for the failure. These are factors that fall within the scope of section 88(1A)(e) of the ADT Act. In that regard, the prima facie rule is displaced and it is fair that costs be awarded. 26In my view, it is "fair" that the Respondent is able to recover the costs that it incurred in relation to the dismissal application and other costs thrown away because the Applicant failed to prosecute his case. 27In my view, the Respondent has been unnecessarily disadvantaged. It is fair that the Applicant pay the costs related to the following items set out in the Respondent's schedule: Correspond with the Applicant regarding his failure to file evidence and submissions within the timeframe ordered by the Tribunal 0.25 hours Prepare for and attend planning meetings at Tribunal on 8 May 2012 0.75 hours File no. 113153 and 113185 Correspond with Applicant regarding his failure to file evidence and submissions within extended timeframe ordered by the Tribunal 0.75 hours File no. 113153 and 113185 Correspond with Applicant and Tribunal regarding Respondent's application to have matters dismissed for want of prosecution 0.75 hours File no. 113153 and 113185 Prepare for and attend hearings at the Tribunal on 3 July 2012 File no. 113153 and 113185 1 hour 28It is appropriate that the Applicant should pay the costs of 3.5 hours work in regard to the dismissal application at the rate of $280 per hour i.e. $980. Order The Applicant it to pay the amount of $980 towards the costs that the Respondent incurred in relation to the dismissal application. That amount is payable 28 days after the date of these reasons. 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. Decision last updated: 13 March 2013