Cairns Port Authority v Albietz [1994] QSC 333 [1995] 2 Qd R 470

IN THE SUPREME COURT OF QUEENSLAND Brisbane No. 575 of 1994 Before the Hon. Mr. Justice Thomas BETWEEN: CAIRNS PORT AUTHORITY Applicant AND: F.N. ALBIETZ, INFORMATION COMMISSIONER (QUEENSLAND) First Respondent AND: THE STATE OF QUEENSLAND Second Respondent AND: CAIRNS SHELFCO NO 16 PTY LTD Third Respondent JUDGMENT - THOMAS J. Judgment delivered 16/12/1994. CATCHWORDS: JUDICIAL REVIEW - Costs - Parties - review of decision of Information Commissioner - Information Commissioner chose to adopt adversarial role in review proceedings - appropriate role of tribunal decision-maker in judicial review proceedings discussed - potential oppression to applicant of multiple costs orders - R v ABT and Ors ex parte Hardiman (1980) 144 CLR 13. Counsel: P. Bickford for applicant M. Wilson QC for first respondent No appearance for second respondent I. Bloemendal (solicitor) for third respondent Solicitors: Reidy & Tonkin as town agents for MacDonnells for applicant P.H. Shoyer, solicitor to Information Commissioner, for first respondent No appearance for second respondent Clayton Utz for third respondent Hearing date: 28 November 1994 -- 1 of 18 -- IN THE SUPREME COURT OF QUEENSLAND No. 575 of 1994 BETWEEN: CAIRNS PORT AUTHORITY Applicant AND: F.N. ALBIETZ, INFORMATION COMMISSIONER (QUEENSLAND) First Respondent AND: THE STATE OF QUEENSLAND Second Respondent AND: CAIRNS SHELFCO NO 16 PTY LTD Third Respondent JUDGMENT - THOMAS J. Judgment delivered 16/12/1994. The only remaining issue in these judicial review proceedings is whether the applicant (Cairns Port Authority - "CPA") should pay the costs of the first respondent (Mr Albietz, "the Information Commissioner"). In order to determine this it is necessary to examine the nature of the litigation and the course which it followed. The application was for judicial review of a decision of the Information Commissioner on 11 August 1994. The effect of that decision was to uphold the release of certain documents which CPA had claimed to be exempt from release under the Freedom of Information Act 1992. CPA, in bringing such proceedings, followed the usual practice of naming as parties both the decision maker (the Information Commissioner) and the adverse party which continued to seek -- 2 of 18 -- 2 production of the documents (Cairns Shelfco No 16 Pty Ltd - "Shelfco"). The other respondent (the State of Queensland) opted to take a passive role, and no question arises in relation to the costs of that party. In the event CPA did not press its claim for judicial review and consented to the dismissal of the application. It consented to an order for costs in favour of Shelfco. However it resists the making of an additional order for costs in favour of the Information Commissioner. In the course of the proceedings the Information Commissioner took an active role and filed extensive material with a view to defeating the applicant's claim for relief. The essential argument on behalf of CPA is that the Information Commissioner was a decision-maker with a quasi-judicial role, and that it was not appropriate for a party in the nature of a tribunal to play such an adversarial role. The submission on behalf of CPA is that if a tribunal chooses to become an adversary it should not normally be granted costs. In other words an applicant ought not to be subjected to a double set of costs when a decision-maker acts in this way. Since about 1988 Shelfco has leased land from CPA. The rent was fixed by reference to valuations which resulted in Certificates of Valuation being issued by the Valuer-General. These, and related documents such as the valuations and preliminary valuations, were in the possession of the Department of Lands. In January 1993 Shelfco applied to the Department of Lands for access to these documents. The Department, on the footing that their disclosure might reasonably be expected "to be of substantial concern" to CPA, obtained the views of CPA under s. 51 of the Freedom of Information Act. CPA objected to their release on various grounds but the Department decided to release them. CPA sought an "internal review" and after a lengthy examination that decision was affirmed. CPA's next step was to seek an external review from the Information Commissioner under s.71(1)(f)(i). In due course the Information Commissioner responded with a decision, -- 3 of 18 -- 3 affirming the decision on the internal review. This was accompanied by very lengthy reasons for decision (some 63 pages of single line typing). The present judicial review application was then brought by CPA. In the course of a directions hearing Moynihan SJA stayed the Information Commissioner's decision. Upon the State of Queensland indicating that it would abide the order of the Court, it was excused from further attendance, reserving the right to appear if thought fit on the question of costs. His Honour also directed that "any additional material" might be filed and served by the respective parties by given dates and that the parties deliver written submissions by specified dates. The Information Commissioner chose to take an active role in the conduct of the litigation. He filed material and he delivered extensive submissions on all aspects of the case. Further particulars were delivered by the applicant, and the Information Commissioner sought still further and better particulars. By correspondence between the parties CPA sought to restrict the Information Commissioner's role in the litigation, but the Information Commissioner did not accede to the request. The matter was not brought before the Court for further directions. There can be no general expectation that the Court would be prepared to decide in advance what roles the parties should play, especially when the parties are at odds on the question. A court may be able to assist, if asked to do so, in guiding the parties to a manageable division of responsibility and role, but that was not requested. Generally it is for each party to decide what role he, she or it wishes to play, and of course the necessity and propriety of that role will eventually be considered by the Court when the question of costs arises. Counsel for the Information Commissioner referred to the fact that the documents in question (a few valuations and draft valuations) were in a sealed envelope and that Shelfco was denied access to them. This is a necessary consequence of the F.O.I. legislation. Where a document is claimed to be exempt, the party seeking access is unable to inspect it unless the -- 4 of 18 -- 4 claim for exemption is overruled. This, it was submitted, meant that Shelfco was denied the opportunity of participating as a full litigant, with the consequence that it was reasonable for the Information Commissioner to become the effective adversarial party. The nature and extent of Shelfco's perceived disadvantage in presenting judicial review arguments through not knowing the actual contents of the documents was not developed in argument. Was the disadvantage substantial? The grounds of judicial review may be summarised as: 1. Breach of the rules of natural justice in making the decision 2. Taking into account irrelevant considerations 3. Failing to take into account relevant considerations 4. "So unreasonable that no reasonable person could have so exercised the power" 5. Errors of law. Seemingly it is only with respect to the fifth ground that it may have become relevant to look at the documents, perhaps on the question whether, contrary to the Information Commissioner's finding, disclosure of them would found an action for breach of confidence (F.O.I. Act s.46(1)(a)). The allegation of "breach of confidence" seems to have been based upon the relationship between C.P.A. and the Valuer-General, and whether any duty of confidence arose by reason that relationship. The contents of the valuations themselves were probably quite irrelevant to this question. None of the lengthy written submissions (by CPA, the Information Commissioner and Shelfco, filed pursuant to directions) suggested that the content of the documents was relevant to the determination of the judicial review, and none of them invited the Court to inspect the documents. There was no submission that the contents of the documents were germane to any particular submission. Shelfco at no stage suggested that it was disadvantaged, or that the Court would need to see them in order to assist its submissions. -- 5 of 18 -- 5 (After publication of these reasons, Counsel for the Information Commissioner brought to my attention that at p.36 of his written submissions there appears a statement "The Court will be invited to inspect the documents". In fairness to the Information Commissioner that fact should be here included.) Apparently C.P.A. knew the contents of the relevant documents and if it had been necessary, that party could have supplied copies to the Court. It seems likely that the sealed envelope was in this instance provided to the Court by the Information Commissioner, and of course, he would seem to be the party who would have obtained the originals pursuant to his powers under s.76 of the F.O.I. Act. The provision of these documents to the Court is a step that could readily have been performed at minimal cost. It hardly justifies the adoption of an adversarial role on the part of the Information Commissioner. So far then, I consider that Shelfco's lack of access to the documents in question was probably not a disadvantage at all. At the most it would seem to have been a potential disadvantage that could have been cured by minimal intervention by the Information Commissioner. Any difficulty could have been met as and when the need for intervention became apparent. In my view Shelfco's disadvantage did not per se afford justification for the Information Commissioner becoming a full adversarial party in his own right. The extent to which a tribunal, when made a respondent in judicial review proceedings, should adopt an adversarial position is a complex question involving some understanding of the necessary parties to judicial review proceedings, costs rules, and practices in this particular jurisdiction and the special position of a quasi-judicial decision-maker whose decision is the subject of judicial review. Parties How does an applicant identify the necessary respondent or respondents to an application? In -- 6 of 18 -- 6 the simple situation where a government official refuses an application (e.g. for a permit) the applicant has no obvious adversarial party in view other than the decision-maker, and commonly the decision-maker will be the sole respondent. The Act does not expressly require the decision-maker to be a respondent but it is unthinkable that a judicial challenge to an administrative decision could be brought without making the decision-maker a party (cf. Pearce Commonwealth Administrative Law 1986 p.157 para.375). The position however becomes more complex when the decision-maker acts in a quasi-judicial capacity, that is to say where he or she makes a decision where two or more parties are in contest. Once again, there is a familiar stream of practice in which the applicant makes the decision-maker and the adversary (or if necessary, adversaries) parties to the review. The usual pattern in such litigation is for the decision-maker to appear and indicate a willingness to take a passive role unless some need is demonstrated for an active one. The natural respondent in such situations is the adverse party. Such practices became well established in the exercise of the prerogative remedies which are the direct predecessors of the present jurisdiction (cf. e.g. R v His Honour Judge Kimmins ex parte Attorney-General (1980) Qd.R. 524; R v Marlow (Bucks) Justices ex parte Schiller (1957) 2 All E.R. 783, 785). Such practices have continued since the advent of the present wider judicial review of administrative action. The position was usefully reviewed by Enid Campbell in "Appearances of Courts and Tribunals as Respondents to Applications for Judicial Review" (1982) 56 ALJ 293. It has been left to the Courts to determine from case to case if the appropriate parties are before it and whether a proper determination may be made. A useful discussion on this topic appears in Telecasters North Queensland Ltd and Anor v. ABT (1988) 82 ALR 90 where Pincus J considered the question of joinder of parties under s.12 of the ADJR Act 1977 (Commonwealth) (equivalent to s.28 of the Judicial Review Act 1991). His Honour -- 7 of 18 -- 7 distinguished such proceedings from ordinary declaratory proceedings where all interested persons should be made parties before a declaration of right is made, observing: "It would appear to be a sound course, where a party has, or may have, an interest in resisting the grant of relief sought under the Judicial Review Act, for the applicant either to make that party a respondent or at least notify it of the institution of proceedings, to enable it to consider applying under s.12. Where, as here, neither of those steps has been taken, the court still has, in my opinion, jurisdiction to determine the case, but would decline to do so if injustice would thereby be caused to the absent party. That must necessarily be so where no respondent interested to oppose the application has been joined. Of course in broadcasting matters, definition of the parties interested may be troublesome. No doubt the whole potential group of viewers may be interested, as may various sub-groups of them."(p.99) There is a risk of oppression of the applicant if too many parties are permitted to be added, through probable blow-out of the litigation and the associated risk of liability for multiple sets of costs. It will be noted that three parties were made respondents in the present proceedings. The second respondent (the State of Queensland) was no doubt introduced as the party which might wish to justify the decision of the Lands Department to release the information. It is noteworthy that in the Information Commissioner's review it was the State, not Shelfco, that carried the onus of demonstrating that the decision was correct (FOI Act s.81). It might therefore be the State rather than the private applicant which should be the preferred adversarial respondent in proceedings such as the present. The respondent Shelfco desired this course to be taken, submitting that citizens successful in securing a right of access on application followed -- 8 of 18 -- 8 by internal and external administrative review, could ill afford the prospect of heavy costs (including possibly those of other parties) when a disappointed third party seeks judicial review. The question whether in such "reverse FOI" cases the State is the logical respondent which should undertake the carriage of the proceedings in order to uphold the determination of the Information Commissioner is best left for another day, because in the event the State indicated that it would adopt a passive role, and the private respondent, Shelfco, was prepared to take on the role of active respondent. I expressly reserve the point whether the adoption of a passive attitude by the State is necessarily the appropriate course in reverse FOI proceedings like the present. Multiple parties may appear as respondents in judicial review proceedings, including parties joined under s.28. No difficulty exists when there is a simple contest between citizen and public official - the decision-maker is the natural person to defend the decision. The difficulty arises when the decision-maker exercises quasi-judicial power that involves a conflict (direct or indirect) between other parties. The applicant's joinder of the Information Commissioner, the State of Queensland, and Shelfco was appropriate (although it is possible that future decisions may designate the State as the prima facie appropriate party, leaving it to the private adversary to apply to be joined under s.28 if it sees fit). In the present case the three respondents were effectively reduced to two. It does not follow however that both these respondents should have responded as full adversaries. This question will be addressed at pp.11-15 ("Role of tribunal decision-makers"). Costs Section 49 of the Judicial Review Act contemplates the making of a special "costs application" which is capable of requiring one party to indemnify another in respect of the costs of further proceedings (cf. South East Queensland Progress Association v Anghel and Others -- 9 of 18 -- 9 C.A. unreported 28/6/94). An obvious example calling for the exercise of this particular power is the case of an impecunious applicant who applies for an indemnity at an early stage of proceedings in which a public authority may obtain the benefit of a test ruling or clarification of some point of practice or of public importance. The jurisdiction to award costs however is much wider than this. Section 49(4) provides: "Subject to this section, the rules of court made in relation to the awarding of costs apply to a proceeding arising out of a review application." O.91 r.1 contains the broad statement that the costs of and incidental to all proceedings in the Court "shall be in the discretion of the Court or Judge". This is a judicial discretion. Consistency of practice has led to a wide degree of predictability in the manner of exercise of that discretion, and of the application of what is loosely referred to as the "costs indemnity rule". Ordinarily costs will follow the event (Hughes v. Western Australian Cricket Association Inc. (1986) ATPR 48134, 48136). However, there are special features inherent in judicial review applications which make it undesirable for there to be a direct transfer of any rigid "loser pays all" approach. The discretion is discussed by Mr Bayne in "Costs Orders on Review of Administrative Action" (1994) 68 ALJ 816, where the discussion highlights the potential relevance of matters of public interest in the exercise of the discretion to award costs. In my view the jurisdiction is one in which matters of public interest play a greater role than they do in ordinary civil litigation (cf. Concord Data Solutions Pty Ltd v. Director-General of Education (1994) 1 Qd.R. 343, 355-356). To date there has been no decision of authority on the question of the breadth of the discretion conferred by s.49(4) but a number of decisions of single Justices in this State show an awareness of the oppression that may result to an unsuccessful applicant or respondent if multiple orders for costs are made against it. In some instances, the overall result is that an unsuccessful party has been ordered to pay the equivalent -- 10 of 18 -- 10 of one full set of costs, with the incidence of that order being divided among other parties. Not infrequently the Crown or the public body is required to bear its own costs (Concord Data Solutions above; Friends of Castle Hill Case (1993) 81 LGERA 346; Queensland Advocacy Incorporated v. Criminal Justice Commission White J unreported, No. 211 of 1994, 27 April 1994). In Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 19 ALD 315 Morling J observed that when all persons against whom relief is sought are made respondents, the general rule should be that an additional respondent who is joined at his own request ought not to receive his costs if the application fails. In circumstances which his Honour considered to be special, the applicant was ordered the pay the costs of two respondents, but it is to be noted that one of these parties was a tribunal which had limited itself to assisting the Court on the proper interpretation of the Act, and whose costs were thereby considerably limited. Too rigid an application of the "loser pays all" approach might adversely impact upon the effectiveness of judicial review as a remedy. Bearing in mind the nature of the litigation, the extent to which there is a public aspect in the proceedings, and the potential oppression of multiple costs orders, it will often be the case that limitation of costs which an unsuccessful party has to pay will be an appropriate exercise of the very wide discretion entrusted to the Courts. Such an approach is by no means new in cases where matters affecting the public interest are ventilated (Liversidge v. Anderson (1942) AC 206, 283; R v Commissioner of Police ex parte Blackburn (CA) (1973) 1 QB 241, 265). Role of Tribunal Decision-Markers In R v Australian Broadcasting Tribunal and Others ex parte Hardiman (1980) 144 CLR 13, 35-36, the High Court queried the conduct of the ABT in presenting a substantial argument upon judicial review proceedings. "In cases of this kind, the usual course is for a Tribunal to submit to such order -- 11 of 18 -- 11 as a Court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a Tribunal becomes a protagonist in this Court, there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in the Court by a Tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal." It is true that in the present proceedings the powers and procedures of the Information Commissioner were relevant, particularly in relation to ground 1, and it would have been appropriate for submissions to be presented in order to assist the Court to a correct understanding of how the Act operates, especially in the early days of this new procedure. There are of course exceptional cases where it is appropriate for a decision-making tribunal to act as the effective adversarial party. This was recognised by Brennan J in Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666, 681. His Honour, whilst recognising that it was "not ordinarily appropriate for the tribunal to appear to contest the curial proceedings brought by one of the parties before it" acknowledged that "where the proceedings before the tribunal are not inter partes, and where the Attorney-General cannot or does not intervene to represent the public interest, and neither a law officer nor a public official is heard by the Court, it may be desirable that the tribunal should appear by counsel to make such submissions as it thinks calculated to assist the court, and in an appropriate case, to argue against the applicant's case". That of course is not the present case. The only justification for entering the arena to argue against the applicant's case was the extent to which Shelfco might be perceived to be unable to mount an argument because it did not know the content of the documents in question. Reasons have already been stated why I think there was insufficient justification in the present case. Counsel for the Information Commissioner referred to Australian Broadcasting Tribunal -- 12 of 18 -- 12 & Anor. v. Wesgo Communications Pty Ltd (1989) 88 ALR 502, Fagan v Crimes Compensation Tribunal (above) and BTR PLC and Anor v Westinghouse Brake and Signal Co. (Aust) Ltd and Ors (1992) 34 FCR 246 to support the proposition that decision-making bodies may take an active part in litigation and be awarded their costs when successful. In Wesgo and in Fagan (above) the tribunal in each case was awarded its costs. In Wesgo, on appeal, the ABT acted as the only effective litigating party, and this may be regarded as an example of the exceptional case where there is no other effective adversary to assist the court. Fagan is another example of proceedings before a tribunal that were not inter partes, and where the tribunal, as the only respondent, was treated as an ordinary party in the matter of costs. BTR v. Westinghouse (above) involved the role of the Australian Securities Commission as the original decision-maker, and of the Administrative Appeals Tribunal on review. Lockhart and Hill JJ (p.265) discussed the special position of the ASC and posited a number of situations in which the Commission might, on appeal to the Full Court of the Federal Court, properly assume the role of an active party. The situations there mentioned include situations where a commercial issue arises but is not fully or properly canvassed by the other parties; where the case raises issues of national significance; and where construction of the law or procedures of the Commission are in issue. I do not think that that discussion is directly transferable to the proper role of the Information Commissioner when his decision is subject to the judicial review of this Court. I have already indicated two situations in which his intervention would normally be welcomed (i.e. proper construction of his own powers, and supplementation when the natural adversary is disadvantaged), and those indications are not intended to be exhaustive. However I do not think that the discussion in BTR v Westinghouse assists the Information Commissioner in the present proceedings. It should also be observed that the prospective role of a decision-maker who is brought -- 13 of 18 -- 13 before the AAT for review on the merits is distinguishable from that of a decision-maker upon judicial review. Responses by decision-makers have tended to be more robust in merit review proceedings in the Administrative Appeals Tribunal, for the reasons expressed by Davies J in Re New Broadcasting Limited and Australian Broadcasting Tribunal and Treasure (party joined) (1987) 12 ALD 1. A particularly relevant factor is that the AAT proceeds by way of a rehearing at which the parties attend, the tribunal considers for itself the facts and the law, and makes the actual decision. Seldom is a matter referred back to the decision-maker for reconsideration (ibid p.11; cf. Tomasic and Fleming Australian Administrative Law 1991 p.67). The practice of the AAT is an unsafe guide for the role that a tribunal respondent should play in judicial review proceedings. Of more relevance to the present situation, although not directly in point, is Merck & Co, Inc v. Sankyo Co. Limited (1992) 23 IPR 415 where Lockhart J observed, with respect to an appearance by the Commissioner of Patents - "The commissioner should be heard fully on questions concerning his powers and procedures. His role should be limited when the parties to the proceedings are before the court and each pursues an active role. His role would then be akin to an amicus curiae. But if a party does not appear or does not argue his case before the court, the commissioner should, speaking generally, be allowed more latitude by the court with respect to the issues which he wishes to address and the extent to which he seeks to present a case. Ultimately it is for the court to control the proceeding before it." The last two sentences, which I have underlined, are pertinent in the context of judicial review, but they do not describe the present case. Some examples may be found of intermediate situations where costs have been awarded in respect of limited roles played by such parties. One such case is Kaycliff Pty. Ltd. v. Australian Broadcasting Tribunal (1989) 19 ALD 315 where Morling J ordered an unsuccessful applicant to pay the costs of each of the two respondents. Importantly however, the respondent -- 14 of 18 -- 14 tribunal had limited its role to assisting the court in the proper interpretation of the Act. Thus, it was an award of costs in respect of a limited role. Generally speaking, exceptional circumstances will be necessary before a tribunal decision-maker should obtain any greater level of costs than this. Position of the Information Commissioner It was submitted that the Information Commissioner is in a special position as a litigant and that legislation gives him special rights of appearance. In particular s.99 of the FOI Act provides: "The Commissioner is entitled to appear and to be heard in a proceeding arising out of the performance of the functions of the Commissioner." The present proceedings seem to be encompassed by that description. There is nothing however in that section to undermine the application of the Hardiman principle in cases where he does choose to appear and be heard. It was further submitted on behalf of the Information Commissioner that the applicant CPA should be regarded as "the State" for the purposes of s.98. That section states: "If a proceeding arising out of the performance of the functions of the Commissioner is instituted by the State, the reasonable costs of a party to the proceedings are to be paid by the State." The argument commences with the extended definition of "government" in s.7 which includes an "agency". Agency is defined in s.8 as including a "public authority". Public authority is defined in s.9 as including bodies established by government for a public purpose under an enactment, and it is common ground that CPA is a public authority. The submission proceeds that the CPA is therefore "government" within the meaning of the Act, and that the words "the State" in s.98 should be taken as meaning the government. Reference was made to the EARC Report on FOI December 1990 (No. 90/R6) which included a proposal that in certain -- 15 of 18 -- 15 circumstances "the government" ought to pay the costs of FOI proceedings. It was submitted that for no known reason the term had changed in drafting to "the State" and that it ought now to be read as bearing that meaning. There are a number of reasons why this submission should be rejected, and I shall state only a few. In the first place the definition of "public authority" in s.9 of the FOI Act is so wide that it includes "a person holding an office established by or under an enactment", and also a body that is supported directly or indirectly by government funds. It would seem that at least under s.9(1)(d) the Information Commissioner himself is a "public authority". If the submission were correct, there would be at least two "States" involved in this litigation, and in the event, as the State was made an additional party, there would have been three. In that situation one State would have been successful, another unsuccessful and another neutral and the section would require the reasonable costs of "a party" to be paid "by the State". Such a construction of the section renders it too prone to producing nonsensical results. If it is intended that all applicant agencies in proceedings such as the present are to pay the costs of all other parties to the litigation (whether public or private) irrespective of whether the applicant is successful or not, clearer words are required. As the section stands, the term "the State" should be interpreted as the Crown or the State of Queensland. CPA does not represent the Crown and is not entitled to the immunities of the Crown. (Council of the Town of Gladstone v. The Gladstone Harbour Board (1964) St.R.Q. 505). Even if I were of the view that this section applied to proceedings instituted by CPA, it would constrain me to award only "the reasonable costs" of the Information Commissioner. Having regard to the principles applicable to tribunal respondents these would be limited to the costs of submissions concerning the powers of the Information Commissioner and to any reasonable supplementation of Shelfco's arguments. I reject any notion that the duties of the -- 16 of 18 -- 16 Information Commissioner place him in a special position, or that he may litigate unhindered by the Hardiman principle. All else aside, if the applicant were successful in its proceedings, the matter would have to be remitted back to the Information Commissioner in all probability to be decided in accordance with the directions of the Court. Given the active involvement of the Information Commissioner in these proceedings it would be very difficult if not impossible for the Information Commissioner to decide the matter without giving an impression of bias, having already made a decision against the applicant's interests and having taken an active role in opposing the applicant on judicial review. Conclusion This is a case where there was already a respondent which could effectively oppose the relief sought by the applicant. The ultimate question was whether that respondent should be allowed access to certain documents. The Information Commissioner's role was quasi-judicial and he was by statute required to be the arbiter between two contending parties. It is contrary to the principle recognised in Hardiman, and I think contrary to public policy, to encourage the Information Commissioner to be a protagonist in upholding the decision he has given. There will be cases, and this seems to be such a case, where it will be proper for him to make submissions on the proper construction of the Act and as to the manner in which the powers conferred by the Act are required to be exercised. The present case is also one where it was possible that some supplementary submissions might have been necessary if Shelfco were perceived to be under a disadvantage by reason of non-access to the documents in question. That position however was not actually reached, and this factor is in the realm of potential rather than actual need. The Information Commissioner chose not to limit his role in any way and it is apparent that considerable costs were incurred in the preparation and delivery of a full adversarial case. -- 17 of 18 -- 17 This was maintained to the very end, including the Information Commissioner's submission before me that he should be awarded the full costs of his response. In this he was unsuccessful. Form of Order The above findings would be reflected in an order that CPA pay the Information Commissioner his costs of the proceedings limited to the subject matter of his powers under the FOI Act, and to any submissions made necessary by reason of Shelfco's inability to see the documents in question. The latter costs are in my view probably nil. I would also make a further order that the Information Commissioner pay all or some of CPA's costs of the appearance before me where the only issue litigated was costs. There would then be a set-off. Those orders would, I think, be virtually unmanageable upon taxation and would be likely to lead to further disputation and an unacceptable increase in costs with unnecessary wastage of public money. In this situation it is preferable that the Court should fix a specific limitation. My provisional view is that the limited costs which could be regarded as justifiable could not exceed one-fifth of those which have actually been incurred. Having regard to the largely unsuccessful submissions that the Information Commissioner made in the special appearance before me, this proportion should be further reduced, possibly to the extent that there should be no order for costs. I shall hear submissions from counsel after delivery of these reasons before formulating the final order. -- 18 of 18 --