Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Adams v Department of Family & Community Services (No 2) [2016] NSWCATAD 145 Hearing dates: On the papers Date of orders: 07 July 2016 Decision date: 07 July 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: J McAteer, Senior Member Decision: (1) The applicant's application for costs is dismissed Catchwords: COSTS – Whether special circumstances made out – Conduct of respondent – Whether conduct amounts to delay – Whether prejudice to party Legislation Cited: Administrative Decisions Review Act 1997 Children and Young Persons (Care and Protection) Act 1998 Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Cases Cited: Adams –v - Department of Family and Community Services [2016] NSWCATAD46 Ceepee Pty Ltd v Roads and Maritime Services [2015] NSWCATAD 130 Dewhirst v Department of Family and Community Services [2015] NSWCATAD 13 Category: Principal judgment Parties: Darnie Adams (Applicant) Department of Family and Community Services (Respondent) Representation: Solicitors: CBD Law (Applicant) Elis McLachlan Solicitors (Respondent) File Number(s): 1510195 Reasons for decision 1. These proceedings arise from an application for access to data / information made by the applicant to the respondent agency under the Government Information (Public Access) Act 2009. (The GIPA Act). The substantive proceedings were an administrative review of the respondent's decision under the GIPA Act. Those proceedings were heard by the Tribunal in late 2015 with a decision issued on 8 March 2016 (Adams –v - Department of Family and Community Services [2016] NSWCATAD 46). 2. Following the publication of the decision, on 16 March 2016 the applicant sought an order for costs in the proceedings. The matter was listed for directions before the Tribunal on 18 April 2016 where orders were for the filing and serving of material and submissions in respect of the costs application. The respondent opposed the application for costs. 3. On 20 June 2016 the filing of the material and evidence in respect of the costs application was completed. Background 1. The proceedings commenced by way of an application for administrative review filed by the applicant on 8 April 2015. The application was brought under the provisions of section 80 (c ) of the GIPA Act in that pursuant to section 63 of the GIPA Act the agency had made a 'deemed refusal' of the application, by not deciding the matter within the time provided for in the GIPA Act. 2. The applicant had spent the majority of his childhood in care under the responsibility of the Minister. The applicant was seeking his entire care file / records for his significant period in care. In this regard the applicant had made seven simultaneous GIPA Act applications to the respondent for copies of his care file. The necessity for the multiple applications was to meet a requirement of the respondent in that the large volume of matters needed to be broken up. 3. The seven GIPA Act applications (under review) were made in early November 2014. In support of the application the applicant submitted that he had originally requested his files in June 2013. Following the seven applications there had 'been a significant and unjustifiable delay in responding to the Applicant's request for information.' (Applicant's Grounds in application for administrative review dated 1 April 2016). 4. The matter was listed before the Tribunal on four occasions prior to the hearing of the application. These listing dates (Planning Meetings) were necessitated initially to have the matter readied for hearing, however early in the process the respondent indicated that it was attempting to complete all seven GIPA applications (and a related subpoena / summons request) and facilitate the expedient release of date (either by way of scans contained on a CD or other method) to the applicant's lawyers. 5. Over the period May to September 2015 the respondent continually released portions of the material to the applicant, however there remained significant delays in processing the substantive applications and this was in part (in the respondent's view) due to resource issues relating to the volume of material. 6. By the time that the matter came on for hearing on 22 October 2015, the respondent had released approximately 86% of the data, but had withheld the remaining 14%. This data was dealt with at the hearing. However in the week prior to the hearing the respondent foreshadowed that a Ministerial Certificate would be issued and claimed over the remaining data and this had apparently occurred on 15 October 2015. The Certificate relates to section 29 of the Children and Young Persons (Care and Protection) Act 1998 (the Care Act). 7. The relevant provision of the Care Act provides that data constituting Care reports cannot be disclosed if a Certificate is issued in resect of those reports. In issuing a Certificate the respondent was now characterising a portion of the information (which remained in dispute) as material for which there was a conclusive presumption against release under the GIPA Act. 8. Whilst the GIPA provides for release of Government information, a discrete sub set of data is quarantined from release. This is because it is deemed to be conclusively presumed that it should not be released (due to the nature of the data), and in effect if characterised as the data of the type referred to in the GIPA Act, it is prohibited from release. 9. Schedule 1 of the GIPA Act provides that Schedule 1 Information for which there is conclusive presumption of overriding public interest against disclosure 10 Care and protection of children It is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in a report to which section 29 of the Children and Young Persons (Care and Protection) Act 1998 applies. 1. Following the hearing of the substantive matter, the Tribunal released some of the data that was sought to be covered by the section 29 Certificate, and some of the data that was initially withheld by the respondent for other reasons. The rest of the withheld data remained prohibited from release. The decision of Adams –v - Department of Family and Community Services [2016] NSWCATAD 46 addresses those matters. 2. The Tribunal published its reasons on 8 March 2016. On 16 March 2016 the applicant made an application for costs in the proceedings. The matter was listed for directions on the question of costs on 18 April 2016. Orders were made for the filing of evidence and submissions in respect of the costs application. Those matters concluded on 20 June 2016. The Tribunal can now determine the costs application. The legislative scheme 1. The general approach in first instance matters before the Tribunal is that each party bears it's own costs. However parties may make an application for costs notwithstanding the absence of a general provision that costs follow the event. 2. Section 60 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) is the source of the Tribunal's authority or power to award costs. Section 60 (1) sets out the matters referred to in paragraph 15 above. Section 60 (2) provides for an application to be made (notwithstanding section 60 (1), and section 60 (3) provides for the criteria that the Tribunal must consider in making such an award. 3. Section 60 provides: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to 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) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (5) In this section: costs includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal. Applicant's Submissions 1. The applicant submitted in written submissions the history of the applications and the proceedings before the Tribunal. In respect of the section 29 Certificate, the applicant submitted that whilst the respondent foreshadowed reliance on a conclusive certificate under Section 29 (1A) of the Care Act, they did not provide the applicant with a copy of that certificate. 2. On 15 October 2015 one week before the hearing the applicant submitted that it wrote to the respondent in respect of the certificate (which on the applicant's submission did not yet exist), and that the applicant was therefore being asked to respond to a contingency. The applicant sought an urgent copy of the certificate so that they could properly prepare their case for hearing. 3. The applicant submitted that 72 hours prior to the hearing the respondent e-mailed the certificate to the applicant (on 18 October 2015 being a Sunday). 4. Following the decision of the Tribunal in respect of the Certificate (at the hearing) on 22 October 2015, and the final decision dated 8 March 2016, the applicant has been seeking the documents which were ordered to be produced by the respondent. 5. The applicant submitted that it had made requests for the documents on 16 March 2016, 19 April 2016 and directly at the directions listing of 18 April 2016. It was submitted that no documents were forthcoming as a result of those requests. 6. As a result of these matters, the applicant submits that it is entitled to an order for costs. The applicant submitted that the use of the conclusive certificate constitutes the exercise of a power in an arbitrary and opaque manner and that the use of such a power should be limited for only legitimate and necessary purposes. In addition it was submitted that when such a power is exercised there should be an obligation for it to be exercised in a transparent manner with a full disclosure to the parties of the certificate at the earliest opportunity. 7. As a result the applicant submitted that special circumstances existed and relied on the case of Dewhirst v Department of Family and Community Services [2015] NSWCATAD 13. Whilst the applicant noted that the respondent relied on that case in respect of a ruling on the section 29 certificate, the applicant noted that on similar facts, the Tribunal made an award of partial costs. 8. Referring to the relevant paragraphs of that decision in its submissions the following passages were relied upon by the applicant. 60. There is no evidence to support the applicant's contention that the respondent issued the subsection 29(1A) certificate for the purpose of blocking the applicant's application. Nor is there any evidence to suggest that Mr Best signed the certificate without proper consideration. However, I do accept that the respondent's conduct in leaving it to the last minute to make a proper assessment of the matters in issue as being conduct that falls within papa 60(3)(a) of the Civil and Administrative Tribunal Act 2013. 61. In his application for review, the applicant expressly raised the issue that the reports for which he sought access had not been made in good faith. He was specific about the reports for which he sought access, including the Form 4 report. The applicant also provided information in support of his contention that the reports, if made, had not been made in good faith, including the Form 4 report. Hence, I find it difficult to understand how the respondent can say that it was not until it received the applicant's submissions on 28 August 2014 that it was in a position to narrow the issues. 62. To leave it to the last minute to provide the applicant with a copy of the Form 4 report and to provide him with the subsection 29(1A) certificate, in my view unnecessarily disadvantaged the applicant, especially as the respondent was aware that the applicant did not live locally and had to travel to Sydney for the hearing. The respondent was also aware that the applicant would be attending the hearing with assistance. This had been made clear at the planning meeting. 1. The applicant submitted that in accordance with Rule 38 of the Civil and Administrative Tribunal Rules 2014 the Tribunal has a discretion to award costs even in the absence of special circumstances warranting an award. However I note that the Rule only applies to proceedings in the Consumer and Commercial Division of the Tribunal. These proceedings are not in that Division but are assigned to the Administrative and Equal Opportunity Division of the Tribunal. 2. The applicant also submitted that the respondent's apparent failure to comply with the Tribunal's orders in respect of the release of documents to the applicant, constituted a failure to comply with a duty imposed by section 36 (3) of the NCAT Act and as a result the provisions of section 60 (3) (f) were enlivened. 3. It was submitted that these apparent failures had caused the applicant to incur further legal costs in attempting to finalise his matters involving obtaining his care files. The applicant submitted that he is of limited financial means and his income is derived from a disability pension. In addition the applicant is in difficult financial circumstances and has had to incur significant legal costs in order to obtain information to which it was submitted he is legally entitled to. 4. For all of the reasons submitted above, the applicant submitted that he should receive an award of costs for the entire proceedings. Respondent's Submissions 1. The respondent in written submissions highlighted the applicant's submissions under Rule 38 and submitted that such a reference was erroneous. 2. The respondent also submitted that there had been no attempt at quantification of any costs. 3. Further matters were submitted including a submission that the relevant documents (as ordered by the Tribunal) were released on the same day as the applicant's written submissions, by cover letter attaching the relevant documents on 5 May 2016. 4. In summary, the respondent submitted that the basis for the applicant's application for costs was as follows: * The use and reliance on the certificate to withhold certain documents, * The failure to comply with the orders of the Tribunal of 8 March 2016, * The applicant was successful in proceedings. 1. In respect of the section 29 certificate the respondent submitted that there was an inference that the use of the certificate was somehow improper and that the certificate was provided late. The respondent conceded that the certificate was provided late, but did not agree that the lateness had any impact on the hearing. The respondent submitted that the Tribunal's addressing of the certificate at the hearing and in its published reasons was compatible with the respondent properly issuing a certificate. 2. In respect of the delay in providing documents, the respondent submitted that it needed to obtain written reasons of all aspects of the decision prior to carrying out the orders of the Tribunal. This approach, it was submitted, was consistent with the need to ascertain the detailed basis of the Tribunal's position and consider whether any appal rights could or should be exercised. 3. I note that there appears to have been some delay in the provision of the transcript of the ex-tempore decision in respect of the powers of the Tribunal in respect of the section 29 certificate. The respondent requested written reasons on the section 29 certificate decision on 11 November 2015. The transcript of those reasons appear to have been approved for release on 26 November 2015, however for reasons which are not clear, were actually released to the parties in late March or early April 2016. 4. As a result the respondent submitted that once the decision was available, and they considered whether any appeal should be considered, the respondent deciding against such a course promptly delivered up the documents arising from the substantive decision to the applicant. 5. The respondent further submitted that the whilst the decision was set aside, the applicant was only partially successful in obtaining documents as a result of the GIPA Act proceedings, and that in any event success of the application is not the overall test under section 60. 6. The respondent submitted that the lateness of the section 29 certificate did not ultimately disadvantage the applicant and that the majority of documents discovered and analysed were released up to the applicant prior to the hearing (the 86% of material) and that the applicant still elected to proceed with the matter after August 2015. 7. In concluding the respondent submitted that there was no proper basis for the exercise of any discretion under 60. Consideration 1. The case of Dewhirst addressed similar factual matters to the current case. Aspects of the decision in respect of costs are set out at paragraph 25 (above). Some of the matters ventilated by the applicant in those proceedings related to the conduct of the respondent prior to the issuing of the section 29 certificate. 2. At paragraph 56 of Dewhirst the background was set out as follows: 56.The applicant argued that the respondent had unnecessarily disadvantage him in the conduct of his application by making claims that had no basis in law and by issuing a subsection 29(1A) certificate without proper consideration of the matters claimed in the certificate and for the improper purpose of 'blocking' his application for access. He also argued that the respondent's conduct in issuing the subsection 29(1A) certificate the day before the hearing and not providing him with a copy until the hearing had disadvantaged him in making proper submissions at the hearing. He said he had prepared his evidence and submissions on the basis of the decision the respondent had made and not on the basis of a conclusively presumed public interest consideration against disclosure following the issue of the certificate issued by Mr Best the day before hearing. 57. He said the conduct of the respondent was also contrary to the respondent's duty to co-operate with the Tribunal and to give effect to the guiding principles under the Civil and Administrative Tribunal Act 2013 by complying with directions and orders that were made (see subsection 36(3) of that Act). 58. In this regard the applicant noted that he had not booked his flights to attend the hearing until 27 August 2014, which was well after the date on which the respondent had filed and served its evidence and submissions and also after the IOC had to filed and served its written submissions. That is, he made his arrangements on the basis of what had been filed and served was what he was required to respond to, but to his surprise on the day of hearing he found the respondent to have changed its position from neither confirming or denying it held the information sought to one of disclosing a report falling within his access request and the notional identification of additional information held by the respondent. And it was his costs in travelling to Sydney for the day of hearing that the applicant seeks to recover his costs. Those costs include the costs of his wife travelling with him as she was to act as his agent. 1. The difference between the present case and Dewhirst, is that the applicant could show some action (the booking of flights) which was within the context whereby the respondent understood that the applicant did not live locally. 2. By leaving the change to the last minute the applicant in Dewhirst was faced with a situation which he was unable to extricate himself form, that is attend a hearing on a specific date, with a preparation which was now partly redundant due to the reliance on the section 29 certificate. In that mater Mr Dewhirst was self- represented and had expended costs / disbursements on travel, to which he had entered into in good faith for a hearing on the case as he had understood it. 3. However in the present case the applicant did not attend and the matter was run by his legal practitioners. Whilst there were costs involved, and the lawyers were required to adjust their arguments to the case now before them, this was not a matter whereby the arguments of the parties were in any way previously settled. In my view these adjustments impacted on not only the applicant but to a lesser extent the respondent and the Tribunal. The nature of the application before the Tribunal had changed significantly from when the matter was set down for hearing. The allocated hearing time was expended and the residue of the substantive matter was determined on the papers as the matters involving the section 29 certificate took up a significant portion of the early hearing time. 4. It appears that the respondent had in effect withheld the material as part of a very protracted GIPA Act application process. Whilst on one characterisation it could be suggested that the respondent had decided the matter in a 'piece meal' manner, 'drip feeding' out the documents to the applicant, this is not the only characterisation. 5. It is fair to say that in the alternative, there was a large amount of material which had been produced (by consent) through parallel processes (GIPA and litigation Summons / Subpoenas). In addition there were significant problems with delay and obtaining instructions which were ventilated by the respondent's representative at the Planning Meetings. The respondent submitted during the preparation of the matter for hearing that the resource impact and the nature of the material were the main reasons for this less than ideal situation. 6. The case of Ceepee Pty Ltd v Roads and Maritime Services [2015] NSWCATAD 130 also recently looked at this issue of costs in the Occupational Division which is governed by similar rules in respect of costs. 7. When considering the conduct of one party and its effect on the conduct of the proceedings towards the other party the Tribunal observed the following: 63…. In my decision in the substantive matter I made comments in relation to the manner in which the Respondent had conducted the proceedings. In particular I made comments in relation to the Respondent's failure to meet its obligation to act as "model litigant". I have referred to passages from the decision above and will not repeat them here. 64.I agree with the Applicant that the approach taken by the Respondent, and particularly the antagonistic approach adopted by counsel for the Respondent, unnecessarily disadvantaged the Applicant. As has been noted, the Respondent did not comply with the President's direction that it particularise its arguments. This placed the Applicant at a disadvantage in preparing for the hearing. 65.I accept Mr Wozniak's submission that in the matter before the Tribunal the Respondent was entitled to raise issues that were not considered in Statement of reasons for the initial determination that was under review. However, the failure to particularise the issues in contention placed the Applicant at a disadvantage in responding to those issues. 66.Further, it is clear that the Applicant attempted to ascertain the nature of the Respondent's concerns and offered to provide the Respondent with information in an effort to address those concerns. In my view, had the Respondent adopted a cooperative approach to that aspect of the proceedings, the issues that remained for determination would have been significantly reduced. In this regard I agree with the Applicant and I do not agree with Mr Wozniak's submissions. 1. In my view the present case is distinctly different from the matters impacting on the parties in Ceepee. Whilst the issue of the delay in complying with the Tribunal's orders does appear concerning in the first instance, the situation is ultimately explained by the respondent's submissions on seeking and obtaining a copy of the ex-tempore decision. Whilst the decision was prepared promptly, the delay in its transmission is not a fault of either party, nor is it a matter that the applicant would have been aware of when seeking enforcement of the Tribunal's orders and initially seeking costs. 2. In addition whilst the applicant is a person of reduced means, compelling in the circumstances as the case for access may be, that ground does not invoke special circumstances which in my view would give rise to an award of costs in this jurisdiction. Conclusion 1. For the reasons set out above, I am not satisfied that the terms of section 60, and in particular the terms of subsection (3) of the Civil and Administrative Tribunal Act 2013 have been made out. In my view whilst the impact for the applicant of the entire process may have been somewhat protracted and frustrating, especially when bearing in mind the application generally and the provisions of section 55 of the GIPA Act (the personal factors) and the objects of that Act, that is not a situation warranting special circumstances. 2. Whilst ultimately the matter was decided (in part) to the applicant's benefit, that also in itself does not warrant on the material before me, the existence of special circumstances which would warrant an invoking of the statutory discretion. 3. It therefore follows that the correct and preferable decision is for the Tribunal to dismiss the application. Orders 1. The applicant's application for costs is dismissed I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 07 July 2016