Civil and Administrative Tribunal New South Wales Medium Neutral Citation: AQO v Pearce [2017] NSWCATAD 268 Hearing dates: On the papers Date of orders: 06 September 2017 Decision date: 06 September 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: The application for costs is dismissed. Catchwords: Costs – special circumstances Legislation Cited: Administrative Decisions Review Act 1997 Administrative Decisions Tribunal Act 1997 Civil and Administrative Tribunal Act 2013 Cases Cited: AQO v Gregory Pearce MLC [2014] NSWCATAD 210 AQO v Minister for Finance and Services [2016] NSWCA 248 AT v NSW Police [2010] NSWCA 131 Bischoff v Sahade & Owners Corporation SP 62022 [2015] NSWCATAP 196 Department of Attorney General and Justice v Schoeman [2012] NSW ADTAP 31 eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Nguyen & Anor v Perpetual Trustee Company Ltd; Perpetual Trustee Company Ltd v Nguyen & Anor (no 2) [2016] NSWCATAP 168 Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 Pearce v AQO [2015] NSWCATAP 162 Category: Costs Parties: AQO (Applicant) Gregory Stephen Pearce (Respondent) Representation: Solicitors: Harris & Harris Solicitors (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 2016/00378427, 1610673 Publication restriction: Section 64 of the Civil and Administrative Tribunal Act 2013 applies in relation to the Applicant's identity. The Applicant's identity is not to be disclosed to the public without further order of the tribunal reasons for decision 1. This is an application by AQO ("the Applicant") seeking an order that the Respondent pay his costs of the first instance matter before the Tribunal. The Respondent opposes that application. 2. The substantive matter concerned a complaint by the Applicant alleging that the Respondent had breached his privacy in relation to a media release issued by the Respondent, in his capacity as Minister for Finance and Services. The media release included anonymised case studies and the Applicant considered that details contained in one of the case studies related to his specific circumstances. 3. The Applicant alleged that the Respondent had obtained and used his personal information for the purposes of the media release. He applied to the Respondent under the Privacy and Personal Information Protection Act 1998 ("the PPIP Act") and the Health Records and Information Privacy Act 2002 ("the HRIP Act") for review of the Respondent's alleged conduct. 4. At first instance, the Respondent raised an issue of jurisdiction concerning the application to a Minister of the Crown of the definition of "public sector agency" for the purposes of section 3(1) of the PPIP Act and section 4 of the HRIP Act. The Applicant was successful at first instance in his contention that the Minister was a public sector agency: AQO v Gregory Pearce MLC [2014] NSWCATAD 210. An appeal to the Appeal Panel in respect of the jurisdictional question was allowed, and the application for review dismissed: Pearce v AQO [2015] NSWCATAP 162. 5. On appeal to the Court of Appeal in respect of the jurisdictional question, a majority of the Court allowed the Applicant's appeal with costs, and remitted the matter to the Tribunal: AQO v Minister for Finance and Services [2016] NSWCA 248. 6. The Tribunal's power to award costs is set out in section 60 of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act"). That section is in the following terms: 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. 1. As can be seen from the section, the ordinary rule is that each party to proceedings before the Tribunal is to pay its own costs. Subsection 60(2) gives the Tribunal a wide discretion to award costs where it is satisfied that there are 'special circumstances' that warrant an award of costs. However, the Tribunal must be satisfied there are 'special circumstances' and that these warrant an award of costs. This means there must be circumstances which are out of the ordinary but not necessarily extraordinary or exceptional: see Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at paragraph [11]; Bischoff v Sahade & Owners Corporation SP 62022 [2015] NSWCATAP 196 at paragraph [24]. 2. Subsection 60(3) provides that the Tribunal may have regard to a range of factors. These include the subsection 60(3)(g) provision regarding "any other matter that the Tribunal considers relevant." It is clear that the factors set out in section 60(3)(a) to (f) are not meant to be an exhaustive list of what might constitute "special circumstances". 3. However, as the Appeal Panel noted in Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38, it does not follow that a costs order should be made because some factors are made out. 4. The discretion to award costs must be exercised judicially having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs: eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at paragraphs [37] and [48]; Nguyen & Anor v Perpetual Trustee Company Ltd; Perpetual Trustee Company Ltd v Nguyen & Anor (no 2) [2016] NSWCATAP 168 at paragraph [16]. 5. It remains necessary for the Tribunal to weigh whether the circumstances are sufficient to amount to 'special' circumstances that justify departing from the ordinary rule that each party bear their own costs. That is, to determine whether the factors relied upon by the Applicant, separately or in combination, establish special circumstances warranting an award for costs. 6. Subsection 60(3)(f) refers to the duty imposed by section 36(3). Section 36(1) of the NCAT Act sets out the "guiding principle" for the NCAT Act and the procedural rules, in their application to proceedings in the Tribunal. These are to facilitate the just, quick and cheap resolution of the real issues in the proceedings. 7. Subsection 36(3) of the NCAT Act sets out the persons who are to co-operate with the Tribunal to give effect to the above guiding principles. These include (a) a party to proceedings in the Tribunal, and (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. The Applicant's case 1. The Applicant seeks an order for costs on the bases that the Respondent has been responsible for prolonging unreasonably the time taken to complete the proceedings (section 60(3)(b)); that the Respondent has failed to comply with the duty imposed by section 36(3) of the NCAT Act (section 60(3)(f)); and on the basis of other relevant matters (section 60(3)(g)). 2. The Applicant contends that the Respondent, through his staff, declined to conduct an internal review on the basis that he was not a public sector agency, without providing any reasons for this view, or the basis for asserting that paragraph (d) of the definition of "public sector agency" did not apply to him. The Applicant submits that this meant that he was required to bring an application in the Tribunal to have the Respondent's conduct reviewed. 3. The Applicant further contends that after the application was lodged in the Tribunal the Respondent continued to dispute the Tribunal's jurisdiction - again without dealing with the issues raised by paragraph (d) of the definition of "public sector agency" and without providing the Applicant or the Tribunal with material to support his view that paragraph (d) was inapplicable to him. The Applicant was placed in a position where he has had to make detailed submissions, in the absence of relevant information from the Minister, about the applicability of the privacy legislation to the Minister. 4. The Applicant also contends that the Respondent resisted the production of material relevant to the jurisdictional question when requested to provide it. He submits that in response to the Tribunal's direction to file and serve details of any accounts relating to the Office of the Minister by 20 September 2013, the only details provided by the Minister were that there was an account, and the account number. A letter containing this information was filed on 15 January 2014 - nearly four months after the Tribunal's direction required account details to be filed. No further details were provided. The Applicant submits that this response was either a failure to facilitate the just, quick and cheap resolution of issues, or another relevant matter to which the Tribunal may have regard under section 60(3)(g) of the NCAT Act. 5. The Applicant also submits that the Respondent did not use his best endeavours to assist the Tribunal to make its decision and he did not comply with his obligations under section 58(1)(b) of the Administrative Decisions Review Act 1997 which required him to lodge: (b) a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal. 1. The Applicant submits that the Tribunal's power to award costs includes "the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application". He contends that the term "proceedings" should also be broadly construed, and taken to begin when the internal review application is made. He argues that the Respondent's conduct prior to the commencement of the proceedings provides relevant context to the Respondent's denial of jurisdiction once the application had been made. 2. Further, the Applicant submits that, to the extent that a jurisdictional matter has clarified an area of the law which may previously have been uncertain, it would not be fair to require a member of the public to bear the costs of bringing this about. 3. The Applicant submits that in the circumstances the Tribunal should be satisfied that there are special circumstances warranting an award of costs in his favour. The Respondent's case 1. The Respondent submits that there is no basis for a costs order in favour of the Applicant. He submits that no costs should be awarded against the Respondent even in circumstances where the application was successful. 2. The Respondent rejects the Applicant's submissions that he had an obligation to provide reasons or evidence in the internal review or in the Tribunal. He also submits that the Applicant was not required to bring an application in the Tribunal nor did he require legal representation. 3. The Respondent accepts that pre-litigation conduct may be relevant to determining whether it is fair to award costs. However, he does not accept that the term "proceedings" includes the internal review application. In this regard he accepts the views expressed by the Appeal Panel in Department of Attorney General and Justice v Schoeman [2012] NSW ADTAP 31. In Schoeman the Appeal panel considered the power to award costs under section 88 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") and stated at paragraphs [59] - [62]: 59. In our view pre-litigation conduct may be relevant when determining whether it is "fair" to award costs. That proposition is supported by the terms of s 88, the authorities on s 88 and its predecessor and the principles applied by the courts for awarding costs in merits review matters. 60. Section 88 clearly states that costs may only be awarded "in relation to proceedings before it". Because Ms Schoeman was not legally represented prior to the commencement of the proceedings, there is no issue about whether she is entitled to costs that were incurred prior to that date. The issue is whether the Department's conduct prior to the proceedings being commenced is relevant when determining whether to award costs in relation to the proceedings. 61. In Australian Aqua Air Pty Ltd, the Tribunal held that a costs award could not be based on a party's pre-litigation conduct. That interpretation had not been accepted in a previous Court of Appeal decision - Cripps v G & M Dawson Pty Ltd & Anor [2006] NSWCA 81. The Court held that in relation to the predecessor of s 88, that conduct prior to the proceedings commencing was relevant to determining whether one party should pay the costs of the proceedings. The Department sought to distinguish that case but I can see no basis for doing so. 62. The Appeal Panel took the same approach in B & L Linings Pty Ltd. I adopt the reasoning and conclusion in that decision in relation to this case. It is also significant that in other statutory contexts involving merits review of government decisions, pre-litigation conduct has been held to be relevant: Lai Qin. It follows that taking into account pre-litigation conduct when determining whether it is fair to award costs, does not constitute an error of law. 1. The Respondent submits that in the circumstances it is unfair for the Applicant to seek that the Respondent pays his costs. Discussion 1. In this matter the Applicant challenged the Respondent's view that he was not a "public sector agency" for the purposes of section 3(1) of the PPIP Act and section 4 of the HRIP Act. The Applicant was successful at first instance and in the Court of Appeal. He now seeks an order for costs at first instance. 2. There are numerous decisions in this Tribunal in regard to section 60 of the NCAT Act and in the former Administrative Decisions Tribunal in regard to comparable provisions in section 88 of the ADT Act. It is not in dispute that the overriding principle is that each party to proceedings in the Tribunal is to pay its own costs and the Tribunal may award costs if it is satisfied that there are special circumstances warranting an award. 3. However, in AT v NSW Police [2010] NSWCA 131 the Court of Appeal observed at paragraph [33] that: 33 ... Although an order varying the general rule [that each party should bear its own costs in the Tribunal] 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. 1. The Applicant has pointed to a number of factors which he asserts constitute 'special circumstances'. In my view, the Respondent was entitled to adopt the position that it took in regard to the jurisdictional issue. I agree that the Applicant bears the onus of establishing the Tribunal's jurisdiction. In my view, the fact that he was required to do so does not constitute 'special circumstances' warranting an award of costs. 2. Similarly, at the internal review stage, the Respondent was entitled to adopt the position that he was not a "public sector agency" for the purposes of section 3(1) of the PPIP Act and section 4 of the HRIP Act. I do not agree that the Respondent's failure to conduct an internal review constitutes 'special circumstances' warranting an award of costs. If I am wrong and the failure to conduct an internal review does constitute 'special circumstances' for the purposes of section 60, in my view those 'special circumstances' do not warrant an award of costs because it remains my view that the Respondent was entitled to adopt the position that he took. 3. I accept that the Respondent's delay in complying with a direction of the Tribunal could have affected the time taken to complete the proceedings. However, in the overall circumstances of the prosecution of the matter I do not consider that this is more than a factor to be taken into account. I do not consider that it is sufficient to justify departing from the ordinary rule that each party bear their own costs. In my view those 'special circumstances' do not warrant an award of costs. 4. Similarly, I am not satisfied that any other 'special circumstances' warrant an award of costs in favour of the Applicant. 5. I am not satisfied that the factors relied upon by the Applicant, separately or in combination, constitute special circumstances warranting an award of costs. It follows that I should decline to exercise the power to award costs in regard to the first instance matter before the Tribunal. Orders 1. The 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: 06 September 2017