Information Access Case Note: Bayne v NSW Department of Premier and Cabinet

View full decision here Applicant conducted proceedings in a way that unnecessarily disadvantaged the Respondent. Tribunal found special circumstances warranted an award of costs, and ordered the Applicant to pay the Respondent’s costs of $4,575.35 Bayne v NSW Department of Premier and Cabinet [2016] NSWCATAD 233

What you need to know

The Applicant applied to the Tribunal seeking a number of orders about the conduct of the Respondent. The Applicant sought orders that the Respondent had committed the offence of concealing or destroying information under s120 of the Government Information (Public Access) Act 2009 (GIPA Act); that an officer of the Respondent had failed to act in good faith warranting referral to a Minister under s112 of the GIPA Act; and was in contempt of the Tribunal under section 73 of the Civil and Administrative Tribunal Act 2013 (CAT Act). 

During the course of proceedings, the Applicant had failed to attend a scheduled planning meeting, and then withdrew the proceedings after the Respondent had made an application for summary dismissal.

The Tribunal found that the Applicant’s explanation for non-attendance at the planning meeting was not satisfactory. The Tribunal found also that the Applicant had conducted the proceedings in a way that disadvantaged the Respondent.

The Tribunal observed that a planning meeting or case conference provides an opportunity for the parties to narrow the issues in dispute and to explore possibilities for resolving a dispute and that if the Applicant had attended the scheduled planning meeting it would have given the Respondent an opportunity to explain why the application was misconceived.

The Tribunal ordered the Applicant to pay the Respondent’s costs of $4,575.35 as it found there were special circumstances to warrant the payment of costs.

Legislative background

Section 120 of the GIPA Act provides an offence for concealing or destroying government information. Section 128 of the GIPA Act provides that proceedings for an offence under the Act may be dealt with summarily before the Local Court.

Section 112 of the GIPA Act provides that the Tribunal may bring a matter to the attention of the Minister responsible for the respondent agency if, following an administrative review it is found that an officer of an agency has failed to exercise in good faith a function conferred on them.

Section 73 of the CAT Act provides broadly that the Tribunal has the same powers as the District Court in relation to contempt, if it appears that a person is guilty of contempt of the Tribunal. Section 73(1) confines the exercise of those powers to the Tribunal. 

The power to award costs is contained in section 60 of the CAT Act. Section 60(1) provides that each party to proceedings in the Tribunal is to pay their own costs. Section 60(2) permits the Tribunal to award costs if it is satisfied special circumstances warrant an award of costs. Section 60(3)(a) identifies that the Tribunal may, in considering whether there are special circumstances, have regard to whether a party has conducted the proceedings in such a way that unnecessarily disadvantages another party to the proceedings.

Factual background

The Applicant had made an application to the Tribunal for orders that the Respondent had committed offences under section 120 of the GIPA Act, was guilty of contempt under section 73 of the CAT Act and that an officer of the Respondent had failed to act in good faith and sought referral under section 112 of the GIPA Act.

The Tribunal found that there was no jurisdiction to determine the claims made by the Applicant. The Tribunal also found that the Applicant had commenced proceedings making serious allegations, apparently without taking any steps, or adequate steps, to ensure the Tribunal could make the orders sought. The Applicant then failed to attend the planning meeting or seek an adjournment of the planning meeting which would have provided an opportunity for the jurisdictional issues to be discussed. The Applicant then waited until the Respondent had filed submissions on the summary dismissal application before withdrawing the matter for the stated reason that she “did not have the time or resources to pursue it”. The Tribunal found that:

“This indicates a failure to seriously consider the impact of the proceedings upon the Respondent and its officers, from the point of view of costs, time and reputation, before commencing the proceedings, or while they were on foot.”

The Tribunal was satisfied there were special circumstances to warrant an award of costs.

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