Civil and Administrative Tribunal New South Wales Medium Neutral Citation: O'Grady v Sutherland Shire Council [2018] NSWCATAD 253 Hearing dates: 24 October 2018 Date of orders: 31 October 2018 Decision date: 31 October 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: C Ludlow, Senior Member Decision: (1) The proceedings are dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 for being misconceived and lacking in substance. (2) The applicant's application for costs is dismissed. Catchwords: ADMINISTRATIVE LAW – government information – whether proceedings lacking in substance – costs. Legislation Cited: Government Information (Public Access) Act 2009 Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Cases Cited: Brodyn Pty Ltd v Owners Corporation – Strata Plan 73019 (No 2) [2016] NSWCATAP 224 Cripps v G and M Mawson [2006] NSWCA 81 Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 Texts Cited: M. Aronson and M. Groves, Judicial Review of Administrative Action, (5th edition, Law Book Co., 2013) Category: Principal judgment Parties: Rod O'Grady (Applicant) Sutherland Shire Council (Respondent) Representation: Solicitors: Applicant Self Represented Sutherland Shire Council (Respondent) File Number(s): 2018/00218513 Publication restriction: Nil REASONS FOR DECISION Background 1. On 16 June 2017 the applicant made an access application under the Government Information (Public Access) Act 2009 ("the GIPA Act") to the respondent for access to information held by it. 2. The respondent determined the application on 17 August 2017. The applicant sought internal review. On 19 September 2017 the respondent was deemed to have confirmed its decision as it failed to make an internal review decision within the requisite time. The applicant sought external review from the Information and Privacy Commission ("the Commission"). That review determined that part of the respondent's decision was not justified and recommended that the respondent make a new decision by way of internal review. 3. The respondent issued a new internal review decision on 5 April 2018. The applicant again sought external review of this decision by the Commission. On 26 June 2018 the Commission made no recommendations. 4. On 16 July 2018 the applicant sought review of the respondent's decision in this Tribunal. 5. Directions were made for the filing of submissions by the respondent on or before 18 September 2018 and by the applicant on or before 2 October 2018. 6. On 18 September 2018 the respondent released some of the outstanding information sought in the application to the applicant. 7. On 16 October 2018 the respondent wrote to the applicant stating "Council has considered your submissions and decided to release to you the remainder of the documents". The documents containing the remaining information he sought were provided in full, as well as a cheque in the sum of $200 intended as the reimbursement of the application fee to the Tribunal ($102) and his estimated out of pocket expenses. The issues before the Tribunal 1. When the matter came before me the applicant accepted that there were no outstanding issues regarding his access to the information sought. What he claimed, however was that the Tribunal should review the respondent's conduct in dealing with the application, which he claimed was tainted by incompetence and bias. 2. He also sought his costs of the proceedings in reliance on s 60 of the Civil and Administrative Tribunal Act 2013 ("the CAT Act"), in particular s 60(3)(g). The jurisdiction of the Tribunal 1. The Tribunal's jurisdiction in this context is limited to conducting an administrative review of the decision made under the Administrative Decisions Review Act 1997 (s 100 GIPA Act). Under s 63 of that Act I am to determine the application for review of the decision, by deciding what the correct and preferable decision is having regard to the material before me, including any relevant factual material and any applicable law. For this purpose, I may exercise all of the functions that are conferred or imposed by any relevant legislation on the Council. 1. to affirm the decision, 2. to vary the decision, 3. to set aside the decision and make a decision in substitution for the decision it set aside, or 4. to set aside the decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations. 1. The applicant is not requesting that I perform any of these functions and to do so would be redundant in the circumstances. The application has been fully satisfied and there is no substantive issue to be decided, with the exception of any claim for costs. Costs 1. The usual rule in the Tribunal is that each party pays its own costs (s 60(1) CAT Act). I may only award costs in relation to proceedings if I am satisfied that there are special circumstances warranting an award of costs. In determining whether special circumstances exist, I may have regard to the matters listed in s 60(3): "(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. In support of his claim for special circumstances, the applicant submitted that the Council had been incompetent in unduly delaying the resolution of the application by maintaining an untenable claim. He also claimed the Council's decisions had been subject to bias and referred to his written submissions in this regard. 2. The respondent submitted that costs are not to be awarded as compensation for time spent by a litigant who is not a lawyer in preparing and conducting his or her case (Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65). 3. Bias may be actual, where there is proof that the decision maker had prejudged the issue or had a closed mind unswayed by the material before them, or apprehended, where there is evidence which would lead a reasonable and fair minded informed observer to conclude that the decision maker might not be impartial (M. Aronson and M. Groves, Judicial Review of Administrative Action, (5th edition, Law Book Co., 2013) at [9.30]). There is no material before me which would lead me to conclude either form of bias was present. 4. The applicant also submitted that the respondent had erroneously relied upon confidentiality as the ground for withholding the information in question under s 14(1)(g). He submitted that if the respondent had read the complaint report in question dated 31 January 2015 which it had already released to the applicant in 2015, it would have discerned that the information held was innocuous and not confidential, was not affected by the Code of Conduct Procedures and there was no basis for relying on confidentiality. 5. In its submissions dated 20 September 2018, the respondent relied on the public interest consideration that disclosure of the information could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence (clause 1(g) of the Table to s 14 GIPA Act,). It submitted that there was an expectation that the confidentiality of the relevant documents was to be preserved, in reliance on the Procedures for the Administration of the Code of Conduct, which stated that: "investigations are to be undertaken in the absence of the public and in confidence" and "information about code of conduct complaints and the management and investigation of code of conduct complaints is to be treated as confidential and is not to be publicly disclosed except as may be otherwise specifically required or permitted under these procedures." 1. The report stated that one of the complaints dealt with was handled under the Code of Conduct. The respondent maintained that the expectations to confidentiality would be the same in either kind of investigation. 2. Approximately one week before the hearing the respondent decided to release all the information and no longer maintain its reliance on confidentiality in respect of any of the documents. 3. I have reviewed the documents. There is one reference to confidentiality in document 24, which suggests seeking the applicant's agreement that the contents of the report be kept confidential as it contains references to members of staff. While the information released is not expressly confidential in nature or indicates that there were expectations or promises of confidentiality, the Procedures do indicate that confidentiality is part of the process. 4. Even if the respondent made an avoidable legal error, the question is whether this constitutes "special circumstances" for the purposes of s 60. Such circumstances should be out of the ordinary but need not be exceptional or extraordinary (Cripps v G and M Mawson [2006] NSWCA 81 at [60] per Santow J (Mason P and Brownie AJA agreeing). Even if I am satisfied that special circumstances exist, I have a discretion as to whether or not to award costs and I am not obliged to do so (Brodyn Pty Ltd v Owners Corporation – Strata Plan 73019 (No 2) [2016] NSWCATAP 224 at [21] and [24]). 5. The respondent changed its position and released the information after receiving the applicant's submissions on the issue and reconsidering its position. This was an appropriate course of action, removed the necessity for a hearing on the issue and is not out of the ordinary. The respondent also reimbursed the applicant's filing fee. The applicant did not adduce any evidence of costs he had incurred apart from the filing fee and he was self-represented. In these circumstances I am not satisfied that special circumstances exist nor that this is a matter where the discretion to order costs should be exercised. 6. The remainder of the proceedings are misconceived and lack substance for the reasons set out at paragraphs [7 -11] above and should be dismissed. Orders 1. The proceedings are dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 for being misconceived and lacking in substance. 2. 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: 31 October 2018