Mangoplah Pastoral Company Pty Ltd v Great Southern Energy (No. 2) [2000] NSWADT 4 (11 January 2000)

Last Updated: 14 January 2000

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Mangoplah Pastoral Company Pty Ltd -v- Great Southern Energy (No. 2) [2000] NSWADT 4

PARTIES: APPLICANT

Mangoplah Pastoral Company Pty Ltd

RESPONDENT

Great Southern Energy

FILE NUMBERS: 993044

HEARING DATES:

SUBMISSIONS CLOSED: 08/12/1999

DECISION DATE: 11/01/2000

BEFORE:

LEGISLATION CITED: Freedom of Information Act 1989

CASES CITED:

APPLICATION: Review of decision to refuse access to documents (or part thereof)

MATTER FOR DECISION: Costs application

APPLICANT REPRESENTATIVE: APPLICANT

D D Feller (Barrister)

Commins Hendricks (Solicitors)

RESPONDENT REPRESENTATIVE: RESPONDENT

J G Renwick (Barrister)

Belbridge Hague (Solicitors)

ORDERS: 1. The applicant's application for costs is refused.

Reasons for Decision:

Reasons for Decision

1 In this matter brought under s 53 of the Freedom of Information Act 1989 (NSW), I gave a decision on 30 September 1999 in which I ordered the release to the applicant of all but one of the documents in contention. The circumstances of the application appear in my published reasons and I shall not repeat them (see Mangoplah Pastoral Company Pty Ltd v Great Southern Energy [1999] NSWADT 93).

2 The applicant subsequently applied for an order under s 88 of the Administrative Decisions Tribunal Act 1997 (NSW) that the respondent pay its costs in relation to the proceedings on an indemnity basis. The parties have agreed that the Tribunal should decide this question on written submissions, without further hearing.

3 There is no issue as to whether the power is available to me. However, the respondent submits that the precondition to the power has not been made out. Section 88 relevantly provides:

"88 Costs

(1) 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 there are special circumstances warranting an award of costs.

(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 the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on any other basis.

...

(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."

4 I must therefore consider whether I am satisfied "that there are special circumstances warranting an award of costs". I agree with the Tribunal in Sloey v State Transit Authority [1999] NSWADT 40 at [12] that this requires me to consider "whether there is something within (the circumstances of the case) which would justify the awarding of costs". However, I do this in the context where the precondition to the costs power gives "a direction to the decision-maker that the discretion it constrains is not lightly to be enlivened" (c.f. Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 29 AAR 120 at 124, and cases there cited. See also Hurt v Director-General, Department of Fair Trading [1999] NSWADT 50).

5 The legislature has given a clear indication that the Tribunal is not to apply the usual approach to an unfettered discretion to award costs in judicial proceedings, i.e. that the successful party can expect to enjoy the benefit of a costs order. Something more than success is needed to warrant an order, whether the successful party is a citizen challenging an administrative decision or an administrative agency resisting such a challenge. Moreover, due to the inherent nature of the Tribunal's jurisdiction in its General Division, the fact that the proceedings concern the correctness of an action taken by a government agency does not of itself raise a "special" consideration. In such proceedings both sides should normally come to the Tribunal with the expectation that they will carry their own costs.

6 In his forceful submission, counsel for the applicant referred to the statutory objectives of the respondent as requiring a sense of social responsibility, and to the purpose of the FOI Act to promote openness of operations of government authorities. He pointed to the legitimate interest of the applicant and the local community in obtaining information as to the fire, and to the financial hardship sustained as a result of the fire. These factors were submitted to be relevant to the question of costs.

7 The main thrust of the submission was that the legal professional privilege exemption on which the respondent, in substance, lost the case was unreasonably claimed. Reference was made to my reasons where I noted the absence of evidence that the respondent had ever received advice from its solicitors that there was a likelihood of legal proceedings against it. I made similar comments in relation to the absence of evidence from the respondent's risk management staff and its consultant loss adjuster. The applicant's counsel submitted that the involvement of the solicitors in the respondent's investigation of the fire was "an artificial device which was not supported by any evidence from the solicitors and which lay at the heart of the strategy to deny access to the documents".

8 In essence the application for costs rests on an invitation that I should be satisfied as to two facts: that the respondent never had a "reasonably arguable case"; and that the propriety of its case was tainted by "an erroneous belief that it had secured privilege by means of an artificial device".

9 I decline to make the first submitted finding. It is true that the respondent failed on my assessment of the respondent's own evidence, and that the legal test I applied was in the terms submitted by the respondent. However, in the context of a costs application under s 88(1), I do not think that the reasonableness of a party's contest of proceedings before the Tribunal should be assessed by an overly critical scrutiny.

10 The issue on which the respondent failed was the objective assessment of the probability of litigation as at various relevant times. Such a predictive decision is one which is inherently uncertain, even when it becomes assisted by hindsight. The respondent's decisions on the FOI application and its defence of those decisions before the Tribunal relied, perhaps too much, on the subjective concerns of some senior managers of the respondent. However, in a situation where I did not doubt the genuineness of the holding of those concerns, I am not satisfied that either the decisions or the defence of them was unreasonable.

11 As to the second submitted finding, I am not prepared in this costs application to characterise the engagement of the respondent's solicitors to be a repository of investigation material as being improper in a sense deserving the sanction of a costs order. In my reasons, I did not doubt the bona fides of the persons concerned, and I would not do so now. Since I decided that the arrangement had failed to attract legal professional privilege, I did not have to decide whether it reflected an inappropriate appreciation of the public interests involved, nor whether there would have been an overriding public interest in disclosing the respondent's fire investigations even if they would have been privileged in legal proceedings. It would not be appropriate for me now to reach a decision on these difficult issues solely for the purposes of a costs application.

12 Taking into account all the matters raised in the applicant's submission, and despite considerable sympathy for the applicant, I am not satisfied that there are special circumstances warranting an award of costs against the respondent. I therefore refuse the application.