NCAT Act 2013 Section 60, (2), (3), (4), & (5)
* What are they? * What are the implications? * Why are they part of the Act? * Are agencies using them?
"....an order for costs is intended to compensate the successful party; it is not intended to be punitive in nature," Oshlak v Richmond River Council (1998) HCA 11
Grasso v Owners of Strata Plan No 52399 [2023] NSWCATAP 91 at [12] discussed the established principles in respect of an order of costs in ‘special circumstances’ as provided for in s 60 of the NCAT Act as follows:12 Certain principles have been established concerning an award of cost as follows:(1) An application for costs can only succeed before the Tribunal if it can be shown that “the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional.”: Santow JA in Cripps v G & M Mawson [2006] NSWCA 84 at [60] in relation to s 88 (1) of the Administrative Decisions Tribunal Act 1997, which, by analogy, is a useful statement applicable in this Tribunal;(2) “An assessment whether circumstances are “special” involves the exercise of a value judgement carried out by way of comparison between what is not “special”, and what is special.”: See Alexander James Pty Ltd v Pozetu Pty Ltd (No.2) [2016] NSWCATAP 75 at [14];(3) the nature and complexity of the appeal proceedings is the relevant consideration; not the nature and complexity of the proceedings at first instance: see Sahade v Owners SP No 62022 [2015] NSWATAP 225 at [38];
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(4) the power to award costs is a discretionary power vested in the decision maker: see Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 62 at 65; [1997] HCA 6;(5) the exercise the discretion requires a tribunal “to weigh whether those circumstances are sufficient to amount to “special circumstances that justify departing from the general rule that each party bear its own costs”: see The Owners – Strata Plan No 63731 v B&G Trading Pty Ltd (No2) [2020] NSWCATAP 273 at [13];(6) an order for costs is intended to compensate the successful party: it is not intended to be punitive in nature: Oshlak v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72; Hamod v State of New South Wales (2002) 188 ALR 659; [2002] FCA 424; [2002] FCAFC 97; and(7) the discretion to award costs is to be exercised judicially: Nguyen v Perpetual Trustee Co Ltd [2015] NSWCATAP 264 at [94
There is a great deal of caselaw precedent about the awarding of costs in the NCAT arena, but in this context we are speaking about the Government Information (Public Access) Act 2009, GIPA, and the Privacy and Personal Information Protection Act 1998, PPIP.
Claiming costs is founded on a claim by an agency that an Access Applicant under either GIPA or PPIP needs to be penalised for exercising their legislated rights to seek a review in the NCAT arena; particularly if they seek an Appeal; that penalty is claimed under the guise of compensation. It's a play on words; both the Costs Applicant and the NCAT are fully aware it is nothing other than punitive.
That, my friends, is not the intention of your parliament when giving the public its GIPA and PPIP Acts, so let's talk frankly here!
It's a very contentious subject, but one the NCAT has failed to properly address since its inception in 2013, and most disappointingly NCAT has failed to embrace and uphold the legislated rights of the public not to be financially penalised.
I can hear your gasps of horror; What?! NCAT can award costs against me regarding my GIPA or PPIP Applications for Administrative Review? How is that possible?
NCAT has awarded costs against GIPA and PPIP Applicants!!
Hold on; doesn't Section 60 say each party pays their own costs?!?!
And doesn't the NCAT website also say each party pays their own costs?!?!
Yes, but if you read on you will see those documented (34) thirty four solicitors who wrote the NCAT Act 2013 included a big fat loophole. Only trouble is, NSW government agencies have been relying on that loophole when it's not applicable to GIPA or PPIP. And they've been dragging out the cases above time and time again to justify their atrocious actions.
Let’s be clear: it’s not the government that doesn’t want you to have the information of interest to you, general or personal whatever the case may be.
The government, your parliament, gave you the legislation; it’s yours.
NOPE! It’s the agency personnel, who somehow manage to see the information belonging to them, they see themselves as gate keepers and guardians of the state’s records, and they believe it’s up to them to make sure as little as possible is made available and that the process for doing so is about as difficult and convoluted as feasable.
Why would they do such a thing? Doesn't our government profess to open, transparent government?
Oh that's just propaganda!
Because sadly a great deal of government employees are not there to be good public servants, they’re there for their entitlements and benefits, their super plans, their holidays, education, career advancement, their friends and associates etc, etc, etc, blah, blah, blah. And they could not care about the public any less if they tried. That’s my opinion and I base that on extensive personal experience.
Government employees also get a great kick out of using their delegated powers against the public. And when they're using public money, it's all the more fun because they have unlimited budgets and take no personal financial risks. They effectively have no real skin in the game.
Well what about the GIPA Act? Does GIPA say they can claim legal costs against me?
NOPE! The GIPA Act, the legislation which enables the NCAT to do what it does, only mentions costs once, and that relates to agencies paying YOU legal fees. You can find that at Section 108, 2, (a).
Thus far, that is at the date of this publication (12th August 2024) NCAT has been granting Costs Wishes to NSW government agencies without the jurisdiction to do so, that is without judicial powers.
The Site Administrator has very recently raised this and other crucial NCAT issues with government and the outcomes will be reported on this Site as soon as available.
In some cases NCAT has opened the door to costs against GIPA and PPIP Applicants, un-represented members of the public, approaching $30,000.00.
Yes that's correct, one case in particular evidences accrued costs approaching $30,000.00, by the covert and deliberate collaboration with a legal team totalling over (100) one hundred years of legal experience, with (6) six solicitors and a vexatious Governance Officer; all against an unrepresented opponent. Of course all this was done covertly, behind departmental doors, with costs secretly climbing at an exponential rate without any disclosure of the size of the legal team; waiting for the perfect time to slam the unsuspecting public with a serious lesson on what to expect for accessing the public's beneficial legislation.
But a brief history lesson is crucial here also to add to the foundational facts NCAT has no jurisdiction to award a Costs Wish in the context of GIPA or PPIP, and that it was never Parliament's intention that should be the case.
Firstly, GIPA is preceded by its older brother the Freedom of Information Act 1989. Secondly, older brother also did not enable the earlier Administrative Decisions Tribunal, ADT, to grant a Costs Wish.
Thirdly, the PPIP Act 1998 has never in any of its earlier versions enabled the earlier ADT to grant a Costs Wish.
This is a whole new concept for the moderned super tribunal the NSW Civil & Administrative Tribunal in 2013, NCAT, which superceded the ADT, again in the context of GIPA and PPIP.
Yes, again, the NCAT Act 2013 Section 60 states NCAT can award costs.
But No, the enabling legislation GIPA or PPIP, does not provide for that. They never did and likely never will. In fact, the current NCAT Guideline - Costs, Point 5, publicly discloses NCAT's lack of jurisdiction to award legal costs in the context of GIPA or PPIP.
It sounds a little confusing at first but the first step for NCAT is “What legislation has enlivened this matter before us?” That is the very first step. If it’s an administrative review, which relates to GIPA, then it’s the GIPA Act 2009.
The same applies to the Personal Privacy and Information Protection Act 1998, or PPIP. NCAT must first ask itself “What legislation has enlivened this matter before us?” If it’s an administrative review, which relates to PPIP, then it’s the PPIP Act 1998.
PPIP also has only one clause relating to costs, and it only applies to the PPIP Applicant, not to agencies, the PPIP Act 1998 Section 55, 2 (a).
So how are agencies managing to get a costs application through NCAT in the context of GIPA and PPIP?
It’s because agencies use large high profile legal teams including the Office of the NSW Crown Solicitor, and these solicitors woo the Tribunal with their submissions, which is easy to do against an unrepresented opponent, particularly if an NCAT virgin.
I mean, let's fact it, if you were sitting at the NCAT bench, with the Crown Solicitor, Sparke Helmore, or Lindsay Taylor Lawyers spread all over the bar table waving a hefty Costs Application at you, given the reverence with which these lawyers are treated and the evidentiary statements Tribunal Members do not deal with conduct, would you have the courage and fortitude to say "No! This Application is dismissed for lack of jurisdiction!" or would you say "Yes! I agree, despite the absence of the enabling legislation to grant a Costs Wish, this unrepresented GIPA or PPIP Applicant deserves to be financially punished for daring to exercise their legally enforceable rights to seek an Administrative Review!"
Well, that was a little dramatic, but clearly this is the hollywood version of what's going on "You want the truth?! You can't handle the truth!!" (A Few Good Men; Jack Nicholson).
Not one of the cases for NCAT costs viewed and considered thus far (by the administrator of this Site) makes full and proper reference to the enabling legislation lacking the mechanism to do so, which in turn deprives the NCAT's jurisdiction to even remotely consider it.
Because they can’t. And they can't disclose it's unlawful. Instead they just plow full steam ahead; to hang with the legislation!
But the NSW Civil & Administrative Tribunal, overflowing with lawyers, paralegals, Special Counsels, Kings Counsels, Magistrates, Judges, and ex-Judges, with all its legal resources cannot make a single legitimate or credible excuse for granting an agency its Costs Wish in the context of GIPA or PPIP.
Case Study:
Webb v Port Stephens Council; Webb v Port Stephens Council; Port Stephens Council v Webb (2020) NSWCATAD 81, ex-judge of the NSW Industrial Relations Commission Francis Marks is recorded in the transcript on the issue of a Costs Wish under the GIPA Act 2009. The Applicant was unrepresented against Barrister Brenda Tronson and several others:
* Tronson:
Principal Member, I should like as well the… if you dismiss Ms. Webb’s applications, the Council will seek its cost or at least would like to consider an application in light of reasons that you make.
* Marks:
The Council wants to pursue Ms. Webb for costs?
* Tronson:
Council would like at least have the opportunity for that in light of …
* Marks:
But you can have that…
* Tronson:
in light of the reasons.
* Marks:
I will reserve costs.
* Tronson:
That leaves the Tribunal.
* Marks:
Ms. Webb, part of the problem when you come to a Tribunal or a court is that you always expose yourself, even though you don’t have any costs, if you lose you always expose yourself to an adverse cost, to a cost order against you. And some people never take that into account, for reasons which I don’t understand, but… and sometimes, lawyers drag their clients along and persuade them to start court proceedings, even though there is not much hope, and when the client loses and there’s a cost order against the client, you know, nobody knows how to deal with that. So, what the Council is saying in this case is that if you do lose, then it wants to consider whether or not it would seek a cost order against you.
* Webb:
Actually, I would expect them to do that.
* Marks:
Would you?
* Webb:
I would expect them to.
* Marks:
Okay. Well, expectations or not…
* Webb:
I would certainly expect them to, given what’s happened to this date, I would expect them to.
* Marks:
Okay. Well, I’ll reserve costs.
* Tronson:
May it please the tribunal.
Yes it wholeheartedly pleased the Tribunal on that occasion, disclosing Marks intention to grant the Costs Wish before NCAT had published its decision, and before it received either an Application or Submissions pertaining to any Costs Wish; to hang with the legislation!
Regrettably for Port Stephens Council, Webb was successful in overturning Francis Marks' decision by proving he acted with bias. No surprises there.
As the case of Nguyen v Perpetual Trustee Co Ltd [2015] NSWCATAP 264 above states (Principle 7), awarding costs must be exercised judicially.
NCAT must have the judicial power to do so and it does not, in the context of GIPA and PPIP.
The granting of a Costs Wish denies the fact both GIPA and PPIP are the public’s legislation, for the public's benefit, not the benefit of over-zealous agency personnel who resent those legislation; these democratic gifts to the NSW public are not intended to punish for their use.
Both GIPA and PPIP are the enabling legislation, and both are classified as beneficial in nature; they are not penal or financial. These two issues, enabling and beneficial legislation, will be discussed at length on this site in due course. Ironically Barrister Brenda Tronson has written at least one article on the subject of beneficial legislation, well before her attempt to seek a Costs Wish in Webb's GIPA case.
Has NCAT awarded costs against you in the context of GIPA or PPIP?
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