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Tribunal dismisses costs application despite litigant's conduct Charles Mabbett
8 December 2016


“I was never ruined but twice: once when I lost a lawsuit, and once when I won one.” Voltaire’s words encapsulate the sharp reality that it can cost a lot of money for cases to be heard and decided in a court of law – even if you are the successful party. A recent Human Rights Review Tribunal case, for example, cost ACC just over $33,000.

In that case, Dr L had complained to the Privacy Commissioner’s Office and subsequently to the Tribunal because ACC had withheld personal information about an investigation it had carried out into his practice as a chiropractor. You can read about the case in this earlier blog post.

Application for costs

After the Tribunal had decided in favour of ACC, the agency made an application for costs of $15,000. In its submission to the Tribunal, ACC said an award of costs was justified because:

  • Dr L repeatedly ignored the Tribunal’s directions, including when to file his witness statements;
  • He raised issues that were without merit or that were a waste of time;
  • He behaved in a manner that was neither reasonable nor appropriate;
  • He put ACC to substantial additional and wholly unnecessary costs and he was therefore liable to compensate ACC for some of that cost.

Not a model litigant

The Tribunal said it was true that Dr L had not been a model litigant – “but few self-represented parties are”. While it had been at times frustrating for both the Tribunal and ACC to deal with Dr L, the Tribunal was not persuaded there had been needless, inexcusable conduct justifying an award of costs.

It noted the most important factor, not addressed by ACC, is that a person who has had personal information withheld by an agency has only one practical remedy –  to ask the Tribunal to view the withheld information and to reach an independent decision whether the withholding ground was justified.

“In our view, it would be wrong in principle for an individual to be deterred from challenging the decision by the prospect of an adverse award of costs should that challenge fail. After all, the individual does not know what is in the withheld information or what evidence the agency has in its possession to justify the withholding decision,” the Tribunal said.

In other words, the complainant has no practical way of knowing what his or her litigation risks are when deciding to test an agency’s case before the Tribunal.

Justice is expensive

The Tribunal referred to the decision in the High Court by Justice Mallon in Commissioner of Police v Andrews and said it provided a forum “through which individuals, who are potentially vulnerable, can challenge the exercise of state power over them”.

While justice can be a costly business, the Tribunal took the view that bringing a case before it should not be a prohibitive factor for complainants seeking redress for a perceived wrong. It said the decision to award costs should “promote, not negate, the protection of individual privacy, and access to the Tribunal should not be unduly deterred”.

On that basis, the Tribunal dismissed ACC’s application for costs.

Image credit: Portrait of François-Marie Arouet (Voltaire) via Open Culture.



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