FOI cost orders in the ADT

The NSW Administrative Decisions Tribunal has painted itself into a very small corner in various decisions interpreting its powers conferred by the Administrative Decisions Tribunal Act to award costs in “special circumstances”. One of the problems is that the Act applies to all aspects of ADT jurisdiction. Many of the matters decided by the Tribunal involved private sector parties but in FOI and Privacy cases the respondent is always a government agency. The Tribunal has issued a Practice Note amended in 2005 on the circumstances and matters relevant to a judgement that a cost order be made.

Having taken a very narrow view, some recent decisions have seen an award of costs against an FOI applicant and an award against a government agency. In the latter, for the first time, the Tribunal has said that the way in which the FOI application was handled before the matter came to the ADT was a relevant factor in deciding that “special circumstances” of the case warranted an order for costs against Tweed Shire Council.