JR v Snowy River Shire Council [2010] NSWADT 249 (20 October 2010)

Last Updated: 21 October 2010

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
JR v Snowy River Shire Council [2010] NSWADT 249


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
JR

RESPONDENT
Snowy River Shire Council



FILE NUMBERS:
093102 & 093103

HEARING DATES:
On the papers

SUBMISSIONS CLOSED:
14 May 2010



DATE OF DECISION:
20 October 2010

BEFORE:
Montgomery S - Judicial Member





LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Privacy and Personal Information Protection Act 1998

CASES CITED:
Argus Industrial Group Holdings Ltd v Chief Commissioner of State Revenue [2010] NSWADT 136
AT v Commissioner of Police [2010] NSWCA 131
Baulderstone Hornibrook Engineering Co Pty Ltd v Gordon Runoff Ltd (No 2) [2009] NSWCA 12
Beasley v Department of Education and Training [2006] VCAT 2044
Corrigan & Gibson v Watson [2009] NSWADT 110
JS v Snowy River Shire Council (No.2) [2009] NSWADT 210
Peng v Chief Commissioner of State Revenue [2009] NSWADT 295
Re Public Transport Corporation and Boroondara CC [2000] VCAT 472
Re Public Transport Corporation and Boroondara CC [2000] VCAT 472
Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Salon Today Pty Limited v. M.M.I.R. Pty Limited [2009] NSWADT 71

TEXTS CITED:


APPLICATION:
Privacy - information protection principle - disclosure to third party

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
In person
RESPONDENT
A Bradbury, solicitor


ORDERS:
1. JR’s application for the reopening of the matters is dismissed for want of prosecution pursuant to section 73(5)(g)(iv) of the Administrative Decisions Tribunal Act 1997
2. JR is to pay the Respondent’s costs of these proceedings from 7 October 2009, as agreed or assessed.


Reasons for Decision:

REASONS FOR DECISION

1 In these reasons the names of all private individuals have been anonymised so as to preserve the privacy of their personal affairs. The applicant is referred to as JR. I have also limited my discussion of the evidence in order to avoid the possibility that the identities of individuals might be revealed.

2 JR has identified complaints under the Privacy and Personal Information Act 1998 ("the Privacy Act") and has sought review of certain conduct by employees of the Snowy River Shire Council ("the Council").

3 JR has brought two separate applications. As the circumstances giving rise to these decisions are largely identical I propose to deal with the matters together.

Application 093102
4 The background is not in dispute. JR applied to the Council for an internal review complaining that a private and confidential Deed of Release between JR and another individual ("the Releasors") and the Council was given to a third party without prior written consent of the Releasors.

5 Because of the circumstances of the alleged provision of the Deed of Release to the third party, the Council determined that JR must have become aware of the Council's alleged conduct on 9 May 2007. The internal review application was lodged on 22 December 2008 and, the Council determined that it was therefore lodged outside the 6 month timeframe provided for by section 53(3)(d) of the Privacy Act. The Council dismissed the application for an internal review on the grounds that the application did not comply with section 53(3)(d) of the Privacy Act.

Application 093103
6 In December 2008, JR applied to the Council for an internal review complaining that private and confidential letters and documents written by JR and members of his family were inappropriately accessed by a third party.

7 The Council completed its internal review in March 2009. Again, because of the circumstances of the matter, the Council determined that JR must have become aware of the Council's alleged conduct on 12 December 2007. The Council determined that JR’s internal review application that was lodged on 22 December 2008 was therefore lodged outside the 6 month timeframe provided for by section 53(3)(d) of the Privacy Act. The Council rejected the application for an internal review on the grounds that the application did not comply with section 53(3)(d) of the Privacy Act.

JR’s applications to the Tribunal
8 JR’s applications to the Tribunal were filed on 23 April 2009. Planning meetings were conducted in relation to the applications between June 2009 and October 2009. The matters were listed for hearing on 7 September 2009 but that hearing was vacated at JR’s request. The matters were relisted for hearing on 18 November 2009.

9 Prior to the hearing, on 16 November 2009, JR advised that he was withdrawing his applications on the condition that costs would not be awarded against him. The matters were listed for dismissal before the Tribunal’s President on 8 December 2009. The President marked the applications as withdrawn/dismissed on the understanding that there was no application for an order that JR pay the Council's costs.

10 In fact, the Council had sought an order that JR pay its costs. Mr Bradbury wrote to the Tribunal on 17 November 2009 advising of his instructions to seek costs. A file note on file indicates that the Registry informed JR of this application on 23 November 2009. The Tribunal wrote to the parties on 26 November 2009 advising them of the directions that I had made for filing of material in regard to the issue of costs.

11 By letter dated December 2009 JR advised that he had received the Tribunal’s 26 November 2009 letter. He indicated that he was rescinding his withdrawal of the applications. He indicated that he had withdrawn the matters on the understanding that there would be no application for costs. He indicated that he had formed that understanding as a result of a letter dated 7 October 2009 from Mr Bradbury and a conversation with Mr Bradbury on 16 November 2009.

12 JR was present for the dismissal hearing before the Tribunal’s President on 8 December 2009. However, it appears from the transcript of that hearing that JR did not bring the full details of the Council’s application for costs, or the directions in relation to that application, to the attention of the President. Mr Bradbury had not been required to attend and was not present at the dismissal hearing and therefore was unable to inform the President in regard to the issue.

13 JR subsequently applied to the Tribunal to have the matters reopened. The matters were again listed before me on 1 March 2010. On that occasion, I set a timetable for the filing of material in relation to JR’s application for reopening of the matters and in relation to the Council’s application for an order that JR pay the Council's costs.

Applicable Legislation
14 Section 55 of the Privacy Act and section 37 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") give the Tribunal jurisdiction to review the conduct that is the subject matter of the complaints.

15 Section 63 of the ADT Act provides:

63 Determination of review by Tribunal

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

16 Section 73 of the ADT Act provides:

73 Procedure of the Tribunal generally

(1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

...

(5) The Tribunal:

(g) may dismiss at any stage any proceedings before it in any of the following circumstances:

...

(iv) if the Tribunal considers that there has been a want of prosecution of the proceedings ...
17 The ADT Act provides that the usual rule in relation to costs is that each party bears its own cost of proceedings in the Tribunal. The power to award costs arises only where the Tribunal is satisfied that it is fair to do so having regard to a non-exhaustive list of factors set out in section 88(1A) of the ADT Act.

18 Section 88 of the ADT Act provides:

88 Costs

(1) Each party to proceedings before the Tribunal is to bear the party’s own costs in the proceedings, except as provided by this section.

(1A) 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 it is fair to do so having regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:

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

(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or

(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or

(iv) causing an adjournment, or

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

(vi) vexatiously conducting 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) any other matter that the Tribunal considers relevant.

(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.

JR’s application to have the matters reopened.

19 JR has not filed any material in compliance with the directions that I made on 1 March 2010. In fact, notwithstanding the long history of these matters, JR has not filed any material in support of his applications.

20 In the circumstances, it is my view that the appropriate order is that JR’s application for the reopening of the matters is dismissed for want of prosecution pursuant to section 73(5)(g)(iv).

The Council’s application for costs
21 The Council filed written submissions in support of its application in each matter. The Council submits that the Tribunal should make an order for costs in its favour because of the lack of merit in JR’s applications and the manner in which JR conducted his cases.

22 Mr Bradbury made similar submissions in each matter. In matter No. 092102 he submitted:

"11. Planning meetings in relation to the Application were convened on the following dates:

(a) 1 June 2009:

(b) 16 August 2009;

(c) 31 August 2009;

(d) 16 September 2009;

(e) 30 September 2009; and

(f) 6 October 2009.

12. Each planning meeting was lengthy (often more than an hour in length) and the Applicant, through his conduct, unnecessarily prolonged the meetings.

13. The Council submits that the Applicant treated each planning meeting as an opportunity to make slurs against those parties present (including the Senior Member) and threaten to take other (unspecified) legal action against the Council and/or the Council's witnesses.

14. The Council made all efforts to inform the Applicant of the evidence that it intended to rely on. A letter was sent to the Applicant on 8 October 2009 for this purpose (copy also attached).

15. The Applicant contacted the Tribunal two days before the hearing date of 18 November2 009 to withdraw his appeal. ...

19. It is not necessary for the merits of a case to be decided or even heard for the Tribunal to make an order for costs.

20. In Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, 624 McHugh J said:

"In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. "

21. Judicial Member Block cited the above in the recent case of Peng v Chief Commissioner of State Revenue [2009] NSWADT 295.

Conduct of the Proceedings

22. The Council submits that the Applicant has conducted the Application in a way that unnecessarily disadvantaged the Council by the following conduct:

22.1 (Unreasonable conduct in the proceedings) The Council submits that the Applicant's conduct in the appeal was unreasonable in that:

(a) There was no evidence from the Applicant that would put in doubt the evidence presented by the Council showing that [JR must have become aware of the Council's alleged conduct on 9 May 2007]. In those circumstances the Application was totally with merit and had no prospects of success;

(b) the Applicant's behaviour at planning meetings resulted in the Respondent incurring substantial legal fees as a result of time wasted by the Applicant on matters not relevant to the Application including, but not limited to, the Applicant complaining and threatening parties including the Senior Member, the solicitor for the Council, the witnesses for the Council and the Council itself with future legal action or complaints; and

(c) the Council submits that the Applicant's decision to withdraw the Application two days before the hearing date despite being given ample time to withdraw his application earlier was done with the intent to unreasonably extend the proceedings and cause annoyance.

21.2 (Relative strengths of the claims) The Council submits that the grounds on which the Applicant made the Application have no tenable basis in fact or law and that this in itself creates a situation where it would be fair to make a costs order against the Applicant.

The Council submits that when the Tribunal considers the comparative strength of one claim against the other, it should consider whether there is 'a substantial disparity between the strength of one claim and the weakness of its competitor': Beasley v Department of Education and Training [2006] VCAT 2044 at [20].

The Council recognises that having a weak case does not, of itself, justify an order for costs. In the case of Re Public Transport Corporation and Boroondara CC [2000] VCAT 472 at [32] the VCAT found that a high level of weakness is required for the imposition of a costs order to result.

In this matter the Applicant filed no evidence. The Council submits that the Application has demonstrated a 'high level of weakness'. The Council submits that in these circumstances it would be fair to make an award of costs.

Unlike Corrigan & Gibson v Watson [2009] NSWADT 110 where the application was withdrawn at an early stage in the proceedings, in this matter the Applicant proceeded until two days before the hearing date.

The Council submits that there was clearly no genuine issue to be tried:

(i) given that the Application was made out of time and the Tribunal has no discretion to extend the time period under the Privacy Act;

(ii) the Applicant failed to file and serve any evidence.

22.3 (Other relevant considerations) The Council submits that Tribunal should consider the timing of the Applicant's withdrawal of the Application.

On or around 8 October 2009 the Council wrote to the Applicant setting out the evidence and legal authorities that it was going to rely on during the hearing.

In relation to costs, the letter stated:

As you can appreciate, there are not insubstantial costs in each of the above named witnesses attending the hearing. Please indicate in writing which (if any) of the above named witnesses you require for cross-examination.

If we do not receive your written confirmation by Friday, 6 November 2009, it will be taken that you do not require the witness for cross-examination.

The Applicant did not respond to this letter. To ensure that the Applicant was not disadvantaged, the Council ensured that all witnesses would be available for cross examination.

The Applicant unreasonably prolonged the proceedings waiting until two days before the hearing date to withdraw his Application. As a final consideration the Council submits that the Applicant has suffered no loss as a result of the alleged breach."

23 In regard to matter No. 093103 Mr Bradbury made the additional submissions:

27. The Council submits that the Applicant has conducted the Application in a way that unnecessarily disadvantaged the Council by the following conduct:

27.1 (Failing to comply with orders) The Applicant failed to comply with all orders made by the Tribunal on 16 August 2009 to file and serve:

(a) evidence on or before 31 August 2009;

(b) written submissions on or before 5 October 3009.

27.2 (Unreasonable conduct in the proceedings) The Council submits that the Applicant's conduct in the appeal was unreasonable in that:

(a) There was no evidence from the Applicant to distinguish this application from the application dismissed by the Tribunal in [JS v Snowy River Shire Council (No.2) [2009] NSWADT 210 (7 August 2009) (the "JS Matter")]. In those circumstances the Application was totally without merit and had no prospects of success ...

The Council recognises that having a weak case does not, of itself, justify an order for costs. In the case of Re Public Transport Corporation and Boroondara CC [2000] VCAT 472 at [32] the VCAT found that a high level of weakness is required for the imposition of a costs order to result.

In this matter the Applicant filed no evidence.

The Council submits that this fact coupled with the internal review application being made out of time and the decision in the JS Matter in relation to the same set of facts results in the Application having demonstrated a 'high level of weakness'.

The Council submits that in these circumstances it would be fair to make an award of costs.
24 In regard to both matter No. 093102 and matter No. 093103 Mr Bradbury made the concluding submissions:

"The Council submits that it would be fair for the Tribunal to make an order for costs in relation to Application for the following reasons:

(i) the Application was conducted by the Applicant unreasonably and in a way that unnecessarily disadvantaged the Council: and

(ii) the Applicant unreasonably prolonged the Application, withdrawing the Application two days before the hearing date; and

(iii) Council submits that the claims made by the Applicant were so weak that they had no tenable basis in fact or law."

JR’s reply the Council’s application for costs
25 JR has indicated that he is opposed to any order that he pay the Council’s costs. However, as noted above, he failed to provide any material in reply to that filed by the Council.

Discussion

26 The provisions of section 88 of the ADT Act have been considered in numerous cases. The starting point in this Tribunal as to costs is that as a general rule each party should bear its own costs. It is likely that costs will not be ordered in consequence of conduct falling within section 88(1A) unless that conduct is of a serious nature and such that there is significant prejudice to the other party in consequence: Argus Industrial Group Holdings Ltd v Chief Commissioner of State Revenue [2010] NSWADT 136 at paragraph [30].

27 The Court of Appeal considered the provisions of section 88 in its recent decision in AT v Commissioner of Police [2010] NSWCA 131. Basten JA, delivering the judgment of the Court, referred to ‘the force of the general principle that each party should bear its own costs in the Tribunal, a principle applicable at both first instance and before the Appeal Panel’. He said:

"33 ... Although an order varying the general rule may be made "only if" the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order. The criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. The circumstances in which fairness may be identified are indicated by the specific attributes listed in sub-s (1A), but subject to the generality of paragraph (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b)-(g) of the Tribunal Act."

28 In Salon Today Pty Limited v. M.M.I.R. Pty Limited [2009] NSWADT 71 Judicial Member Molloy commented on the generality of paragraph (e). He stated at paragraph [77]:

77 But the real key to understanding the Section 88 amendments is Section 88(1A)(e): "any other matter that the Tribunal considers relevant". These are very, very wide words, quite deliberately chosen by the Parliament, which quite clearly enjoin this Tribunal to look very carefully at the concept/principle of fairness and to widen the scope, without restriction, of the various aspects of the litigation – indeed, all the aspects of the litigation – that may result in a finding that the Tribunal is satisfied that it is fair to award costs. In my opinion it would be wrong to attempt to restrict Section 88(1A)(e).
29 Parties to litigation are expected to act reasonably in the running of litigation: Baulderstone Hornibrook Engineering Co Pty Ltd v Gordon Runoff Ltd (No 2) [2009] NSWCA 12 per Allsop P at paragraph [18].

30 I have considered Mr Bradbury’s submissions in regard to the Council’s application for costs. I generally agree with his assessment of the manner in which JR’s applications have been conducted. For the reasons that Mr Bradbury has outlined, it is my view that JR has not act reasonably in the running of these applications.

31 While it should have been apparent to a reasonable litigant that the applications were doomed to failure much earlier than that date, it is my view that JR should not have pursued the applications past the time that he received the Council’s letter of 7 October 2009. In that letter Mr Bradbury wrote:

"We ask you to consider carefully the matters raised in our letter of 20 August 2009. As foreshadowed there, we reserve the right to rely on the letter in support of an application that you pay the Council’s costs associated with the hearing of the appeal if you choose not to withdraw it."

32 The letter of 20 August 2009 invited JR to withdraw his application in matter No. 093103 and indicated that it would not seek costs if he did so within 7 days of that date.

33 It would have been prudent for JR to have acted to bring the matter to an end at that stage. However, from the time that he received the Council’s letter of 7 October 2009 he was squarely on notice that an application for costs was a live issue in both matters. From that time JR was responsible for "prolonging unreasonably the time taken to complete the proceedings". In my view it is fair to award costs in the Council’s favour for the remainder of the proceedings.

34 In my view, this is a matter of the kind referred to by McHugh J in Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin in that JR "has acted so unreasonably that the [Council] should obtain the costs of the action."

35 I emphasise that I make no criticism of Mr Bradbury or the Council in regard to the manner in which these proceedings have been conducted. In this regard I specifically reject all submissions that JR made in that regard.

Order

1. JR’s application for the reopening of the matters is dismissed for want of prosecution pursuant to section 73(5)(g)(iv) of the Administrative Decisions Tribunal Act 1997.
2. JR is to pay the Respondent’s costs of the proceedings from 7 October 2009, as agreed or assessed.