New NSWADT cost powers get first workout.

In January in "Long lost review sort of surfaces, four years late" I commented on the statutory review report on the NSW Administrative Decisions Tribunal Act tabled with so little fanfare in Parliament years late by the Attorney General that the President of the Tribunal appeared to not notice; that the review was then (and still) yet to be published on the Attorney General's website, so few will have seen it; and that the report had been the basis for some changes to the Act that received scant attention during parliamentary debate.

The only reference in Parliament to one change-to the Tribunal's powers to order costs in proceedings-was this from the Attorney General in the Second Reading Speech in the Legislative Council on 27 October;

"(The Bill) amends section 88 to confirm that the parties in the tribunal are to bear their own costs unless the tribunal orders otherwise, and incorporates an expanded range of matters to be considered in the making of an award of costs. The provision is modelled on the provision contained in the Victorian Civil and Administrative Tribunal Act 1997."

I missed this at the time-hands up who didn't?- so was surprised when a new provision was used recently by the Tribunal, apparently for the first time in a privacy or Freedom of information matter, to impose a cost order on a complainant/applicant.

In BE v University of Technology Sydney(2009) NSWADTAP 22 the President sitting as the Appeal Panel decided that the lodgement of a late application for review of an earlier Tribunal decision concerning a privacy complaint was in this case a strong basis for a costs application [29]. And costs were awarded because the appeal in the context of this much litigated complaint, bordered on the vexatious [31-32].

The new powers are a far cry from the extremely limited "special circumstances" provision for costs prior to the amendment of the Act, and put FOI and privacy applicants, and yes, government agencies appearing before the Tribunal on notice that a wide range of matters-including "any other matter the Tribunal considers relevant"- can now be taken into account regarding cost orders. And will be, as BE has now found, with no doubt others to follow. Section 88 of the ADT Act now reads:

‘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) …

(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.’

As to the NSW Government making sure we all know about changes in the rules, that's another story.