Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Roberts v Commissioner of Police, NSW Police Force (No 2) [2018] NSWCATAD 233 Hearing dates: On the papers Date of orders: 09 October 2018 Decision date: 09 October 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: K Ransome, Senior Member Decision: The application by the applicant for costs is dismissed. Catchwords: COSTS – late release of information in GIPA proceedings – delays in filing material – no disadvantage or prejudice - no special circumstances Legislation Cited: Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Cases Cited: Nastav v Commissioner of Police, NSW Police Force [2018] NSWCATAD 164 Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 Category: Costs Parties: Glen Roberts (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Mitchell Lawyers (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 2016/00378376; 2017/00059886 REASONS FOR DECISION 1. This is an application for costs by the applicant in the original proceedings, Mr Glen Roberts, against the respondent, the Commissioner of Police, NSW Police Force. The original proceedings involved two applications for access to information under the Government Information (Public Access) Act 2009 (the GIPA Act). The applications by Mr Roberts sought access to information held by the Commission which related to a prosecution against him which was dismissed by the Local Court, the handling of his subsequent complaint and an application for an ex gratia payment which was refused. 2. The matters were dealt with together and had a relatively lengthy history involving two days of hearing and the provision of further written evidence and submissions following the vacation of another hearing date. I made orders on 15 June 2018 in which I noted that some further information had been released to the applicant during the course of the proceedings and otherwise affirmed the respondent's decisions in both applications. The law 1. The Tribunal's power to award costs is set out in section 60 of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act"): "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." 1. As can be seen from that section, the ordinary rule is that each party to proceedings in the Tribunal pays their own costs. The Tribunal may, however, order a party to pay another party's costs if satisfied that there are special circumstances which warrant such an order. 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". 2. 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" to be applied to the practice and procedure of the Tribunal. This is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Subsection 36(3) of the NCAT Act sets out the persons who are to co-operate with the Tribunal to give effect to that guiding principle. These include a party to proceedings in the Tribunal. 3. As the Appeal Panel observed 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. It remains the task of the Tribunal to weigh whether those circumstances amount to "special" circumstances that justify departing from the ordinary rule that each party bear their own costs. 4. The Tribunal usefully summarised the relevant provisions in the recent case of Nastav v Commissioner of Police, NSW Police Force [2018] NSWCATAD 164 at [9] as follows: * "special circumstances" are circumstances that are out of the ordinary, they do not have to be extraordinary or exceptional; * the discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs; * each situation must be assessed on a case by case basis to see whether or not special circumstances exist so as to warrant the award of costs. The applicant's submissions 1. The applicant submits that the nature of the proceedings were of significant importance to the applicant and complex and that the respondent conducted the proceedings in a way that unnecessarily disadvantaged him. He submits that on two occasions the respondent did not meet timetables set by the Tribunal for the filing of material in preparation for hearing, contrary to the respondent's obligations as a model litigant. The applicant states that delays on the part of the respondent led to him incurring further costs, including the cost of dealing with the delay, such as considering correspondence, taking instructions and responding as required. 2. The applicant is concerned that information the subject of the applications was released to him in a piecemeal fashion during the proceedings. He is particularly concerned that one document, exhibit R8 in the original proceedings, was only released to him after the lunch break on the second day of the hearing. He states that the late release of the information disadvantaged him as he was not able to cross-examine any witness in respect of this information. He states that, had the document been released earlier, much of the cross-examination at the hearing of the respondent's witnesses would have concerned this document. 3. The applicant states that Exhibit R8 should have been released well in advance of the last afternoon of the hearing. He states that, but for the GIPA proceedings, the respondent would not have disclosed to him the further documents which were released during the hearing. He submits that the proceedings were therefore justified and special circumstances exist to warrant an award of costs. Respondent's submissions 1. The respondent submits that it did not engage in conduct that unnecessarily prolonged the proceedings or disadvantaged the applicant or that any other special circumstances exist which would warrant an award of costs to the applicant. 2. The respondent acknowledges that there was some delay on its part but states these were the result of the consolidation of the two GIPA applications, the large amount of material involved and the need to notify three other agencies that information about their functions was within the scope of the GIPA applications. The respondent also submits that any delay did not prejudice the applicant's preparation of his case, as, as is usual in GIPA cases, the respondent was required to file its material first. 3. The respondent submits that release of information during the course of GIPA proceedings is not unusual and the making of proper concessions is entirely in accordance with model litigant principles as such concessions can only serve to reduce the overall cost of the proceedings. 4. In relation to Exhibit R8, the respondent states that the document was released as it no longer sought to maintain that clauses 1(f) and (h) of the Table to s 14 of the GIPA Act applied to the information. The information was released with redactions as the respondent continued to maintain that it contained information that was subject to legal professional privilege and also contained excluded information. The respondent submits that release of the document could in no way be said to be prejudicial to the applicant and notes the applicant has not explained how release of the information at an earlier stage would have changed the way he conducted his case. 5. The respondent also notes that the proceedings were in fact scheduled for further hearing which was vacated by consent some two months later. The applicant did not seek to recall any witnesses for further cross-examination at any time, even though he had an opportunity to do so. 6. The respondent also raises a number of issues with the way the applicant conducted the proceedings which it submits militates against an award of costs in its favour. In summary, these are that the applicant raised an issue concerning the adequacy of searches two weeks before the hearing, ran a legal argument about legal professional privilege that was without foundation and cross-examined the respondent's witnesses on irrelevant matters. The respondent states that these maters unnecessarily prolonged the hearing and demonstrated that the applicant fundamentally misconceived the nature of administrative review proceedings under the GIPA Act. Consideration 1. The applicant has had a long running dispute with various agencies, in particular the NSW Police, with regards to what he believes was a malicious prosecution against him. The applications under the GIPA Act which were the subject of these proceedings were brought in an attempt to obtain information which he believes is relevant to his case. He was, of course, perfectly entitled to make such applications and to put forward his arguments about release of the information. 2. As is often noted, an applicant in GIPA matters is often at a disadvantage as the contents of the information sought to be withheld is not known to them. The conduct of their case can therefore be difficult. In this matter, it appeared that the applicant's approach was coloured by his view of the police and other agencies who had taken action against him. To a certain extent, I agree with the respondent's submission that the applicant misconceived the nature of the GIPA proceedings. There was a tendency to dispute the content and nature of the information itself rather than whether the information should be released in accordance with the GIPA Act. 3. There does appear to have been some delay by the respondent in complying with timetables set by the Tribunal. However, I do accept that there was a large amount of material involved and a need to involve other agencies in decisions about whether information could be released. As the applicant himself has stated, the proceedings were complex. The applicant has not been able to particularise how his costs were increased by any delay on the respondent's part. The respondent sought extensions of time for the filing of material and these were granted by the Tribunal. The applicant was not required to respond until the respondent had filed its material and it is therefore difficult to understand how he was disadvantaged. 4. It is true that some information was released to the applicant during the course of the proceedings. The remainder of the information sought, however, was not released as I found the respondent had made out its case in various respects. While, of course, it would be preferable if information which is capable of being released is provided to an applicant at an early stage, the applicant has been unable to point to any prejudice he suffered by release of the information. It is not unusual for further information to be released during the course of the Tribunal proceedings as the evidence is presented. 5. It is not clear to me why the applicant states that late release of information after the conclusion of the respondent's evidence meant he was prejudiced because he could not cross-examine witnesses on the information so released. I do not understand what would be the purpose of such cross-examination in GIPA proceedings. Such an approach does support the view that the applicant misconceives the nature of the GIPA proceedings. 6. While I can understand that the applicant would have preferred information that was released to him had been released earlier in the proceedings, I am not satisfied that in this matter the applicant was disadvantage or suffered any prejudice by any conduct on the part of the respondent. I am therefore not satisfied there are any special circumstances which would warrant an order for costs in the applicant's favour. The primary rule that each party to proceedings in the Tribunal is to pay the party's own costs, should apply. Order 1. The application by the applicant 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: 09 October 2018