Preston v Chief Executive Officer, Casino Control Authority & Ors (No 2) [2003] NSWADT 229 (13 October 2003)

Last Updated: 24 October 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Preston v Chief Executive Officer, Casino Control Authority & Ors (No 2) [2003] NSWADT 229

PARTIES: APPLICANT

Alexander Preston

RESPONDENTS

Chief Executive, Casino Control Authority

Star City Pty Ltd

Tabcorp Ltd

FILE NUMBERS: 023296

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 08/08/2003

DECISION DATE: 13/10/2003

BEFORE: Higgins S - Judicial Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Casino Control Act 1992

Freedom of Information Act 1989

CASES CITED: Hurt v Director General, Department of Fair Trading [1999] NSWADT 50

McCabe (No 2) v Electoral Commissioner, State Electoral Office [2003] NSWADT 58

Brooks Maher v Cheug [2001] NSWADT 18

Director General, Department of Education and Training v Simpson [2001] NSWADTAP 6

Hutchings Electrical v Director General, Department of Fair Trading (No 2) [2002] NSWADT 255

Rouse v Shepherd (No 2) (1994) 35 NSWLR 277

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Krake v Commissioner of Police, NSW Police Service [2003] NSWADT 112

APPLICATION: Costs

MATTER FOR DECISION: Costs

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENTS

K Eastman, barrister

ORDERS: The Applicant's application for costs is dismissed

Reasons for Decision:

INTRODUCTION

1 Mr Alexander Preston, the applicant, has made an application for costs against the respondent, the Chief Executive, Casino Control Authority ("CCA") and the joined parties, Star City Pty Limited ("Star City") and Tabcorp Holdings Limited ("Tabcorp"). Star City and Tabcorp have submitted written submissions opposing the cost orders sought by Mr Preston.

2 On 11 July 2003, the Tribunal handed down a decision in the substantive matter, Preston v Chief Executive, Casino Control Authority; Star City Pty Limited and Tabcorp Holdings Limited v Chief Executive, Casino Control Authority [2003] NSW ADT 165. Mr Preston's application related to the decision of the Chief Executive, Casino Control Authority to refuse him access to documents that he had requested pursuant to the Freedom of Information Act, 1989 ("FOI Act"). Star City and Tabcorp were reverse FOI applicants in that the documents for which access was refused were documents that affected their business affairs and or they contained information provided in confidence by Star City to the CCA.

3 In its decision, the Tribunal made the following orders:

(1) Affirmed the decision of the Chief Executive of the CCA in respect of the Cripps reports and document nos. 36.2 and 42.1;

(2) Varying the decision of the Chief Executive of the CCA in respect of document 6.1, 29.1, 9.2 and 9.3 in that an edited version of each document was to be released with deletion of the relevant exempt matter, within thirty days of the Tribunal's decision;

(3) Not affirming the decision of the Chief Executive of the CCA in respect of document 13.1 and remitting to the CCA for further consideration, in consultation with Star City, in respect of deletions of relevant exempt matters;

(4) Setting aside the decision of the Chief Executive of the CCA in respect of document 36.3 and in substitution of that decision, a decision was made to grant access to that document.

4 The Tribunal also ordered that a decision in respect of costs was to be made on the papers, subject to the parties being given liberty to submit written submissions within 14 days of the decision. Such an order was made as Star City in its written submissions, for the substantive hearing, had made an application for costs. Written submissions, in respect of costs, were filed by Mr Preston and Star City.

COST APPLICATION

5 Mr Preston sought indemnity costs in respect of the following expenses:

(a) 326 hours of investigation and research costs for the purpose of preparing submissions in support of his application at the cost of $150.00 to $300.00 per hour;

(b) Secretarial expenses to the order of $3,676 for typing, photocopying, binding, editing his submissions and evidence that was tendered at the hearing; and

(c) His travelling expenses for a total sum of $4,000 which included air tickets, accommodation and ground transport in respect of four trips.

BACKGROUND

6 Mr Preston's application pursuant to the FOI Act was made on 29 July 2002. Numerous documents were identified by the CCA as coming within the terms of his request. As it was required to do, the CCA consulted with Star City in respect to a selection of those documents, which related to the business affairs of Star City.

7 On 2 September 2002, the CCA determined to release certain documents to Mr Preston and access was denied to the remaining documents on the grounds that they, or part of them, were exempt under the FOI Act. On being advised of the determination of the CCA, Mr Preston, as he was entitled to, sought review of the CCA's determination in respect of numerous documents. This was further complicated by Star City objecting to the CCA's determination to release some documents in part. Star City held the view that these documents were exempt in their entirety.

8 Prior to the hearing of the matter, Mr Preston confined his application to thirteen of the documents that were in dispute, two of which were the same. At the hearing of the matter, on 9 April 2003, the CCA and Star City agreed that access be granted to Mr Preston in respect of three of the documents. Accordingly, only ten documents were at issue at the hearing of the matter and of these two were the same.

9 In his written submissions, Mr Preston based his application for costs on what he interpreted the Tribunal's decision to have been, namely that the Tribunal had found that Star City's position in respect of eleven of the thirteen documents that were in issue was not correct. He also submitted that the tactics and behaviour of Star City and the CCA had "put him to considerable expense to investigate the matters in issue and for which there was not a scintilla of evidence to justify its maintenance". He has relied on the decision in Fountain Selected Meats (Sales) Pty Limited v International Produce Merchants Pty Limited & Ors (1988) 81 ALR 397 at 401 and Rouse v Shepherd (No. 2) (1994) 35 NSWLR 277 at 282.

10 In its written submissions on Mr Preston's costs application, Star City submitted that there was no evidence of "special circumstances" justifying a cost order in favour of Mr Preston, and even if there was the costs claimed by Mr Preston were not costs that were recoverable under an award for costs pursuant to s. 88 of the Administrative Decisions Tribunal Act, 1997 ("ADT Act").

RELEVANT LAW

11 Section 88 of the ADT Act sets out the Tribunal's powers in relation to costs. That section provides as follows:

"88(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.

(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.

(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".

ISSUES

12 The issues in this application are as follows:

(a) Are there "special circumstances" in this particular application, which justify an award of costs against the CCA or Star City and Tabcorp Limited?

(b) If so, should costs be awarded on an indemnity basis?

(c) Are the costs, which Mr Preston seeks, costs coming within the terms of the legislation?

ARE THERE SPECIAL CIRCUMSTANCES JUSTIFYING AN AWARD OF COSTS?

13 The Tribunal, as a creature of statute, has no inherent power to make an order for costs. Its power to award costs in applications for review of an administrative decision is entirely derived from s.88(1) of the ADT Act. That section does not give the Tribunal an unfettered discretion to award costs as apply in judicial proceedings, namely costs following the event, where, as a general rule, the successful party is entitled to an order for his/her/its costs in respect of the proceedings.

14 As has been highlighted by numerous decisions of the Tribunal, s. 88 of the ADT Act only gives the Tribunal power to award costs where it is satisfied that the matter before it gives rise to "special circumstances" that warrant an award of costs (Hurt v Director General, Department of Fair Trading [1999] NSWADT 50 at [9] and McCabe (No 2) v Electoral Commissioner, State Electoral Office [2003] NSWADT 58 at [6]). That is, something more than mere success is required (Brooks Maher v Cheug [2001] NSWADT 18 at [11] and Director General, Department of Education and Training v Simpson [2001] NSWADTAP 6 at [6]). Nor has the fact that the Tribunal did not agree with the administrator's decision been held to be sufficient to constitute special circumstances for the purpose of s. 88(1) of the ADT Act (Hutchings Electrical v Director General, Department of Fair Trading (No 2) [2002] NSWADT 255 at [18]).

15 In March 2003, the Tribunal issued a Practice Note in respect of costs (Practice Note No 12). That Note emphasises that in proceedings for review of a reviewable decision "costs can only be ordered in special circumstances" (at [4]). The Practice Note also sets out, by way of example, circumstances that may be special and justify a cost order (at [2]). These emphasise circumstances where one party's conduct in the proceedings has placed the other party at an unfair disadvantage.

16 The cases relied on by Mr Preston in his submissions relate to the question of indemnity costs being awarded in civil proceedings, which are adversarial in nature. As mentioned above, the general rule in such proceedings is that the successful party is entitled to an award for its costs, that award being on a party party basis (Rouse v Shepherd (No 2) (1994) 35 NSWLR 277 at 279). In such proceedings a court also has express or inherent power to award indemnity costs or "client solicitor" costs. However, such costs are only awarded in special circumstances. In Rouse and Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 the court held that it was appropriate to consider the award of indemnity costs where civil proceedings were commenced or continued in circumstances where the unsuccessful party properly advised should have known that he/she had no prospects of success and he/she commenced or continued the proceedings for some ulterior motive.

17 The special circumstances that give rise to an order for an indemnity cost order in civil proceedings may provide some guidance to the exercise of the Tribunal's discretion under s. 88(1) of the ADT Act as to what amounts to special circumstances under that section. However, these decision are distinguishable as proceedings for review of an administrative decision are not adversarial in nature (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at [70] and Krake v Commissioner of Police, NSW Police Service [2003] NSWADT 112 at [11 & 12].

18 In this case the Tribunal made no adverse finding against the CCA or Star City in respect of their conduct in these proceedings. The evidence was that the CCA had responded to Mr Preston's request in the appropriate way as set out in the FOI Act and that it had consulted with Star City, as it was required to do under s. 32 of the Act. Similarly, Star City exercised its rights in a legitimate way.

19 While the Tribunal can understand Mr Preston's frustration in challenging a decision in respect of access to documents the contents of which he has no knowledge of, it cannot be said that the decision of the CCA or that of Star City was made on no tenable basis in fact or law. There was a legitimate basis for their respective positions, particularly in light of the provisions in s. 148 of the Casino Control Act 1992.

20 Even though the Tribunal did not uphold the determinations of the CCA in respect of the documents for which access was refused, it did uphold the decision in respect of the main document which Mr Preston sought access to, namely the Cripps reports.

21 For the reasons stated above, the Tribunal finds that Mr Preston has failed to establish that special circumstances exist justifying an order for costs in these proceedings. On this basis, it is unnecessary for the Tribunal to consider the other matters in issue.

22 Accordingly, the Tribunal orders that Mr Preston's application for costs is dismissed.