Hatton v Director General, New South Wales Department of Education and Training [2008] NSWADT 18 (16 January 2008)

Last Updated: 12 February 2008

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Hatton v Director General, New South Wales Department of Education and Training [2008] NSWADT 18


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
Ross Alan Hatton

RESPONDENT
Director General, New South Wales Department of Education and Training



FILE NUMBERS:
063374

HEARING DATES:
On the papers

SUBMISSIONS CLOSED:
5 December 2007



DATE OF DECISION:
16 January 2008

BEFORE:
Handley R - Acting Deputy President





LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989

CASES CITED:
Charteris v General Manager, Leichardt Municipal Council (No 2) [2001] NSWADTAP 39
Gales Holdings Pty Ltd v Tweed Shire Council (No 2) [2006] NSWADT 41
Hutchings Electrical Pty Ltd & anor v Director General, Department of Fair Trading (No 2) [2002] NSWADT 255
KR v St Vincent’s Hospital [2004] NSWADT 85
PC v University of NSW (GD) (No 2) [2006] NSWADTAP 54
Re the Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 143 ALR 1

TEXTS CITED:


APPLICATION:
Costs

MATTER FOR DECISION:
Costs


REPRESENTATION:
L Hagan, solicitor
P Cribb, solicitor


ORDERS:
The Tribunal orders the Respondent to pay, within 28 days, the Applicant’s, Mr Hatton’s costs as agreed or assessed in relation to the proceedings in pursuit of his application before the Tribunal for the period 21 November 2006 to 12 June 2007 inclusive.


Reasons for Decision:

REASONS FOR DECISION

1 Alan Hatton applied to the Tribunal for the review of a decision of the Director General of the NSW Department of Education and Training (‘the Department’) to refuse access to documents sought by Mr Hatton under the Freedom of Information Act 1989 (‘the FOI Act’). Ultimately, Mr Hatton withdrew his application when the documents were produced in response to a summons issued in other proceedings before the NSW Industrial Relations Commission (‘IRC’). However, he maintains that costs should be awarded because of the ‘special circumstances’ affecting these Tribunal proceedings.

Background

2 On or about 15 May 2006, Mr Hatton’s solicitors applied, on his behalf, to the Department for access to documents concerning complaints made against Greg Burton, a TAFE teacher in Taree, and, in particular, to the report of an audit inquiry into the matter by Ian Jackson (‘the Jackson Report’). On 1 September 2006, the Department denied access to the documents sought on the ground that the documents were ‘exempt’ pursuant to the provisions of the FOI Act. By letter dated 8 September 2006, Mr Hatton’s solicitors applied for an internal review of this decision.

3 The Department, having failed to determine the internal review application within 14 days after receipt, was deemed to have made a decision refusing access to the documents sought, pursuant to section 34(6) of the FOI Act. On 16 October 2006, Mr Hatton’s solicitors sought a review of this decision by the Tribunal.

4 On 21 November 2006, I conducted a planning meeting with the parties. At that meeting, I was informed by the Department that an "internal review decision" would be made by 5 December 2006, and I made directions for the exchange of evidence and submissions in the period after that date, and set the matter down for hearing on 29 January 2007. I note Mr Hatton’s counsel indicated that Mr Hatton would be seeking costs because of the Department’s delay in responding to his application for internal review.

5 On 5 December 2006, the Department determined to grant access to a number of the documents sought by Mr Hatton on payment of a fee of $255.00. Mr Hatton’s solicitors responded by letter dated 15 January 2007 enclosing payment for this fee.

6 At the hearing on 29 January 2007, there was no appearance by the Department. I made enquiries with the Department and was informed that its representative was unexpectedly unavailable due to personal circumstances. Mr Hatton’s counsel indicated that Mr Hatton would once again be seeking costs. The directions made by me on 21 November 2006 having not been complied with, I asked the parties to (1) prepare an agreed timetable for the exchange of evidence and submissions for my approval, and (2) to inform me whether a further planning meeting was required before the matter was ready to proceed to a hearing.

7 Accompanying a letter dated 27 February 2007, the Department released a number of documents to Mr Hatton’s solicitors. By letter dated 13 March 2007, Mr Hatton’s solicitors drew attention to a number of documents missing from those said to be supplied.

8 I conducted a further planning meeting with the parties on 3 April 2007, when I made directions for the Department to produce the documents missing from those said to be supplied with its letter dated 27 February 2007, and for the exchange of submissions. I also scheduled another planning meeting on 16 June 2007.

9 Having received no response from the Department, Mr Hatton’s solicitors wrote again on 23 April 2007. The Department replied by email dated 27 April 2007, apologising for the delay in responding and stating that the outstanding documents would be forwarded as soon as practicable.

10 At the planning meeting on 12 June 2007, I made further directions for the exchange of documents and scheduled another planning meeting on 24 July 2007. At the planning meeting on 24 July 2007, counsel for Mr Hatton indicated there was a possibility that the matter might be resolved by the applicant seeking the issue of a summons for the production of the Jackson report in the IRC proceedings. I agreed to schedule another planning meeting on 17 August 2007, which was subsequently changed to 20 August 2007. At the meeting on that date, I was informed by Mr Hatton’s solicitor that the application for the issue of a summons had not been filed until 17 August 2007, and the parties requested that I adjourn the meeting until 14 September 2007 to allow time for the issue of the summons and for the Department to respond.

11 On 14 September 2007, the parties informed me that the date scheduled for the return of summons was 26 September 2007, and requested that, once again, I adjourn the meeting. At a planning meeting on 7 November 2007, the parties informed me that the Jackson report had been produced by the Department in response to the summons. The Department’s solicitor said it still opposed the release of the report to Mr Hatton under the FOI Act. Mr Hatton’s solicitor said his client no longer wished to pursue the application before the Tribunal but, nevertheless, wished to make an application for costs. I therefore gave directions for the exchange of submissions on the issue of costs, and the parties agreed that I should determine this issue ‘on the papers’.

Applicable Legislation

12 Section 88 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’) states:

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 a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 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.

Applicant’s Submissions

13 Mr Hatton’s solicitors filed submissions on the issue of costs on 27 September 2007 and 23 November 2007. They submit there are special circumstances justifying an award of costs, pursuant to section 88 of the ADT Act and section 56(3) of the FOI Act. The Applicant initiated the review proceedings in the Tribunal because he was left no other course of action by the Respondent, whose failure at first instance is a special circumstance triggering costs. Further, the Respondent was responsible for inordinate delay and obfuscation, contrary to the objects of the FOI Act. The Applicant "was put to unreasonable and extraordinary inconvenience, prejudice and costs by the Respondent’s failure to provide disclosure in accordance with the FOI legislation".

14 Mr Hatton’s solicitors refer to the objects of the FOI Act stated in section 5, noting that section 5(2) confers on each member of the public a legally enforceable right to access documents, "subject only to such restrictions as are reasonably necessary for the proper administration of the Government". Section 5(3(b)) states that it is the intention of Parliament "that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information".

15 The Applicant maintains that the Respondent’s disclosure of only relatively few pages or parts of pages of the Jackson report was meaningless and negligible in proportion to the original request. The Respondent’s conduct in the additional review determination of 5 December 2006 and the fee of $255.00 imposed for access to the further documents, are further reason for invoking the costs discretion to compensate the Applicant for having to continue the proceedings.

16 Mr Hatton’s solicitors state the Applicant maintains his claim for costs notwithstanding the Respondent’s acquiescence/compliance with the alternative process initiated by the Applicant–the application for a summons in the IRC proceedings. Mr Hatton’s solicitors submit "it was the Respondent who ultimately offered to deal with the FOI (ADT matter) through a Summons in the IRC without the objection of exempt material" (Submissions in Reply, par 14).

17 Mr Hatton’s solicitors referred to the decision of the Tribunal on the issue of costs in another FOI matter, Gales Holdings Pty Ltd v Tweed Shire Council (No 2) [2006] NSWADT 41 (‘Gales’). They submit there are "clear parallels" between the Applicant’s case and the facts of that case, which they contend involves a lesser level of non-compliance. In Hutchings Electrical Pty Ltd and anor v Director General, Department of Fair Trading (No 2) [2002] NSWADT 255, the Tribunal awarded costs on just and reasonable grounds as compensation for the unnecessary costs the applicants were forced to incur.

18 Mr Hatton’s solicitors noted that in PC v University of NSW (GD) (No 2) [2006] NSWADTAP 54, at paragraph 22, the Appeal Panel relied on the Tribunal’s practice Note Number 12, "Costs". Mr Hatton’s solicitors submitted, by reference to the Tribunal’s Practice Note 12 and the examples of special circumstances set out therein, that the Respondent caused the Applicant to resort to the ADT and incur further costs by its failure to make an internal review decision within the 14 days stipulated, by later agreeing that some material was not exempt, by calling on the Applicant to pay a further fee in respect of the FOI request contrary to the objects of the FOI Act, by failing to include some of the documents said to have been supplied with the subsequent internal review decision and failing to respond to reminders from the Applicant to do so, by necessitating that the Applicant make further submissions as to the deficiency, and that by acquiescing in the alternative disclosure process by way of IRC summons, the Respondent’s conduct was totally misleading at the Applicant’s cost, or, alternatively, amounted to an admission that it had no basis on which to claim an exemption in the first place.

The Respondent’s Submissions

19 The Department filed submissions on the issue of costs on 7 November 2007 and 5 December 2007. It does not dispute that the Tribunal is empowered to exercise its discretion to award costs despite there having been no hearing on the merits of the case and in circumstances where the applicant no longer wishes to proceed with his application: Re the Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 143 ALR 1 (‘Lai Qin’), per McHugh J at 3. However, the Department submits this is not an appropriate case for the award of costs because there are no special circumstances warranting such an award or, in the alternative, if there are special circumstances, they do not warrant an award of costs. The Department referred to the decision in KR v St Vincent’s Hospital [2004] NSWADT 85 (‘KR’), at paragraph 18, where Deputy President Hennessy said:

"In my view, the agency’s reliance on an exemption which had no tenable basis in fact amounts to a ‘special circumstance’ warranting an order for costs. Although the substantive issue was settled during the course of the hearing, KR was put to unnecessary expense in preparing for and attending the Tribunal hearing".

20 The Department submitted that the decision in KR should be distinguished on its facts because, in the present matter, there was no hearing. The Department also sought to distinguish the facts of this matter from those in Gales, on the basis that in the present matter, the Department did not maintain a position from which it later moved or was forced to move.

21 The Department disputes that it has been guilty of inordinate delay and obfuscation. While the Department had previously acknowledged some delay and confusion, for which it apologised, in providing documents referred to in the internal review determination, it submits that this does not constitute ‘special circumstances’ or, if it does, does not warrant the making of a costs order. The Department also disputes that it acquiesced in the alternative disclosure process initiated by the Applicant in the IRC, or ultimately offered to deal with the FOI application by way of a summons in the IRC. For example, in an email dated 17 August 2007, the Department’s solicitor noted that whether the Department would not object to the disclosure of the Jackson report in the IRC proceedings was a matter for those representing the Department in those proceedings.

Discussion

22 In my view, the Tribunal is not, in this case, empowered to award costs under section 56(3) of the FOI Act, as submitted by Mr Hatton’s solicitors, because there was no application by the Department for further time for the making of an internal review decision and the Tribunal did not make such an order. Nevertheless, the Tribunal has a discretion to award costs in accordance with section 88 of the ADT Act.

23 The Tribunal’s normal expectation is that the parties in Tribunal proceedings should bear their own costs. The Tribunal does not follow the usual approach in judicial proceedings whereby the successful party can expect an order for costs. The Tribunal’s discretion to award costs may only be exercised where there are ‘special circumstances’. As the Department acknowledged, the Tribunal is empowered to exercise its discretion despite there having been no hearing on the merits of the case and in circumstances where the applicant no longer wishes to proceed with his application: Lai Qin.

24 The Tribunal’s Practice Note Number 12 provides, relevantly, the following examples of special circumstances that may justify a costs order pursuant to section 88(1):

"Special circumstances that may justify a costs order

2. The following are some examples of special circumstances that may justify a costs order. The Victorian and Civil Administrative Tribunal Act 1998 costs provisions have been cited in a number of this Tribunal’s decisions and the relevant sections form part of the following list of examples. The examples are not exhaustive:

whether a party has conducted the proceeding in a way that disadvantaged another party to the proceeding by conduct such as:

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;

(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;

(iii) asking for an adjournment as a result of (i) or (ii);

(iv) causing an adjournment;

(v) attempting to deceive another party or the Tribunal;

(vi) vexatiously conducting the proceeding;

· whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

· 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;

· in matters under the Retail Leases Act 1994 ... ;

· where an appeal is lodged ... ."

25 In Charteris v General Manager, Leichardt Municipal Council (No 2) [2001] NSWADTAP 39, the Appeal Panel also noted that special circumstances alone are not sufficient–under section 88(1) they must "warrant an award of costs". Relevantly, it is clear from the Panel’s discussion that the conduct of one party that causes the other party to incur costs because of unreasonable delays and failure to comply with directions may constitute special circumstances warranting an award of costs.

26 Mr Hatton’s solicitors referred the Tribunal to the decision in Gales, submitting that there are clear parallels with the present case, and contending that Gales involved a lesser level of non-compliance than the present case. In Gales, at paragraph 16, the Judicial Member found:

"the manner in which the Respondent determined the Applicant’s FOI request, together with the Respondent’s persistence in claiming that documents were exempt and then changing its position just before or during the hearing of the application does give rise to special circumstances."

27 The present matter did not, ultimately, proceed to hearing because Mr Hatton was able to obtain access to the Jackson report through the summons procedure available to him in the proceedings in which he has been involved in the IRC. Thus, I have not been called upon to make a determination on the Department’s decision that the whole or parts of the documents to which Mr Hatton sought access under the FOI Act were exempt. Consequently, I am not in a position to make any finding as to the relative strengths or weaknesses of the claims made by the parties. Nevertheless, I have a discretion to award costs in relation to the proceedings before me if satisfied that there are special circumstances warranting such an award.

28 I have set out above the sequence of events leading to Mr Hatton’s application to withdraw his application for review. In my view, there is no doubt that the proceedings in the Tribunal were unreasonably delayed by the Department’s handling of this matter.

29 Firstly, there was a delay caused by the Department’s further decision of 5 December 2006, on the conclusion of its review of the original decision. In terms of the provisions of the FOI Act, this decision cannot be characterised as an internal review decision because the decision was not made within the required period following Mr Hatton’s lodging of his application for an internal review. Mr Hatton filed his application with the Tribunal for a review of the deemed refusal on 16 October 2006. The delay was exacerbated because in the letter dated 5 December 2006 notifying Mr Hatton of the Department’s revised decision, the Department’s sought payment of a further fee of $255 "for the determination of the internal review request". This was paid by Mr Hatton’s solicitors under cover of a letter dated 15 January 2007.

30 I had scheduled a hearing in the matter for 29 January 2007. There was no appearance by the Department at the hearing. While I accept this was due to unforeseen urgent personal circumstances affecting the Department’s representative, the outcome, nevertheless, was that Mr Hatton unnecessarily incurred further costs.

31 Further delay was caused when, in its letter dated 27 February 2007, the Department failed to attach all the documents to be provided to Mr Hatton pursuant to the revised decision. Despite a letter from Mr Hatton’s solicitors dated 13 March 2007 drawing the Department’s attention to this fact, the Department failed to respond. At a planning meeting on 3 April 2007, I gave the Department a direction to provide the missing documents referred to by Mr Hatton’s solicitors by 17 April 2007. The Department failed to comply with this direction. On 23 April 2007, Mr Hatton’s solicitors wrote to the Department once again seeking the missing documents. On 27 April 2007, the Department replied by email apologising for the delay:

"there have been delays in dealing with the relevant files and documents. We are endeavouring to finalise the release of the remaining documents referred to in the [internal reviewer’s] determination and will forward these as soon as practicable. At the same time, a response will be provided in relation to the remaining documents requested ..."

32 According to a statement by the Department’s solicitor in Submissions dated 11 June 2007 (at paragraph O), no further correspondence was sent by the Department to Mr Hatton’s solicitors.

33 I note the reason Mr Hatton had sought access to the Jackson report was to use this in support of proceedings brought by him (and others) in the IRC in relation to a complaint of workplace bullying and harassment. The IRC ordered Mr Hatton to provide further particulars of his complaint. It appears Mr Hatton sought access to the Jackson report for this purpose, contending, in the IRC, that without access to the Jackson report, he would be unable to do so. The IRC therefore adjourned its proceedings pending the outcome of the FOI proceedings before the Tribunal.

34 On the day of the next planning meeting-12 June 2007, the Department finally filed further documents and, at the planning meeting, I made further directions for the exchange of submissions and scheduled a further planning meeting for 24 July 2007. I was informed at the planning meeting on 24 July 2007 that the matter might be resolved by Mr Hatton’s solicitors seeking the issue of a summons in the IRC proceedings, for the production of the report.

35 In my view, the events following the planning meeting on 24 July 2007 do not go to the issue of special circumstances. I accept the Department’s position that its response to the summons for the production of the Jackson report in the IRC proceedings does not bear directly on the position it takes in relation to these FOI proceedings. Release under FOI is recognised as being release to the "whole world", which is different to the production of a document in response to a summons.

36 The events described above in relation to these FOI proceedings leads me to conclude that the Department’s conduct caused Mr Hatton to incur additional costs because it unreasonably delayed these proceedings and failed to comply with the Tribunal’s directions. In my view, in the circumstances of this case, such conduct constitutes special circumstances within the meaning of section 88(1) of the ADT Act warranting an award of costs.

37 As the Judicial Member acknowledged in Gales, it is difficult in such circumstances to determine with any precision the portion of an applicant’s costs attributable to the respondent’s conduct, which in this case was the Department’s unreasonably delaying these proceedings and failing to comply with the Tribunal’s directions. In my view, while there are differences between the material facts in Gales and those in the present case, Gales provides useful guidance.

38 In my view, the appropriate order in the present case is for the Department to pay Mr Hatton’s costs in relation to the proceedings in pursuit of his application before the Tribunal in respect of the period from 21 November 2006–the date on which I first conducted a planning meeting in these proceedings, to 12 June 2007–the date of the last planning meeting before that on 24 July 2007 at which counsel for Mr Hatton informed me that the matter might be resolved by the issue of a summons for the production of the Jackson report in the IRC proceedings.

Decision

The Tribunal orders the Respondent to pay, within 28 days, the Applicant’s, Mr Hatton’s costs as agreed or assessed in relation to the proceedings in pursuit of his application before the Tribunal for the period 21 November 2006 to 12 June 2007 inclusive.