Australian Conservation Foundation Incorporated and Secretary, Department of Climate Change, Energy, the Environment and Water (Freedom of information)
[2024] AATA 309
•29 February 2024
Australian Conservation Foundation Incorporated and Secretary, Department of Climate Change, Energy, the Environment and Water (Freedom of information) [2024] AATA 309 (29 February 2024)
Division:Freedom of Information Division
File Number: 2020/4161
Re:Australian Conservation Foundation Incorporated
APPLICANT
Secretary, Department of Climate Change, Energy, the Environment and WaterAnd
RESPONDENT
AndWalker Group Pty Ltd
JOINDER APPLICANT
INTERLOCUTORY DECISION
Tribunal:Mr A. Maryniak KC Member
Date:29 February 2024
Place:Melbourne
Pursuant to section 30(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) the Tribunal orders that upon Walker Group Holdings Pty Ltd, by 4pm 14 March 2024, providing to the Tribunal and the Applicant and the Respondent (a) its Statement of Facts, Issues and Contentions and (b) any further material or evidence it seeks to rely upon at the hearing of this review application, it be made a party to the proceedings.
................................[sgd].......................................
Mr A. Maryniak KC Member
Catchwords
PRACTICE AND PROCEDURE – joinder – procedural fairness – interests affected – whether reasonable delay in making joinder application – nature of business interests of affected party – consequence of delay to proceeding – nature of freedom of information decision subject of review – whether ulterior purpose of joinder application – joinder granted.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Cases
Australian Conservation Foundation Incorporated and Secretary, Department of Agriculture, Water and the Environment [2021] AATA 4619
Australian Conservation Foundation Incorporated v Secretary, Department of Climate Change, Energy, the Environment and Water [2023] FCA 1005
Moorabbin Airport Corporation Pty Ltd and Minister for Infrastructure and Regional Development and Ors [2014] AATA 101
Motor Trades Association of Australia v Trade Practices Commission [1993] ATPR 41-201NVCV and Secretary, Department of Infrastructure, Transport, Regional Development and Communications [2020] AATA 2662
REASONS FOR INTERLOCUTORY DECISION
Mr A. Maryniak KC Member
29 February 2024
On 24 August 2023 the Federal Court remitted this review application, brought by the Applicant against the Respondent, of a decision of a delegate of the Respondent dated 2 May 2019 refusing relevantly access to Documents 3, 10, 11, 22 and 44(b) (the Documents in Issue). The Federal Court judgment sets out the background to this matter.[1]
[1] Australian Conservation Foundation Incorporated v Secretary, Department of Climate Change, Energy, the Environment and Water [2023] FCA 1005, [3]-[14].
On 30 January 2024 Walker Group Holdings Pty Ltd (Walker) applied to be made a party to this review application, pursuant to s 30(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The Respondent consents to the joinder and the Applicant opposes it.
By this review application the Applicant seeks access under the Freedom of Information Act 1982 (Cth) (the FOI Act) to the Documents in Issue, which were created and are held by the Respondent, relating to the proposed development of Toondah Harbour, Morton Bay, Queensland, a proposal which is currently before the Federal Environment Minister for decision.
On 2 February 2024 the Tribunal heard the joinder application. The Tribunal has considered the written submissions of the Applicant together with a bundle of 5 documents,[2] and the Respondent’s Decision on Access dated 2 May 2019, the written submissions of Walker with its bundle of documents,[3] the affidavit of Douglas James Bishop sworn 2 February 2024, and the oral submissions made during the hearing. Due to its proximity, the scheduled hearing date for this remittal of 13 February 2024 and various related Directions were vacated.
[2] ‘Walker Application to Join as a Party - Submissions of the Applicant’ dated 31 January 2024 (the ‘Applicant’s Submissions’); Applicant Bundle ‘ACF DOC 1’-‘ACF DOC 4’, lodged 1 February 2024.
[3] ‘Walker’s Submissions on Application for Joinder’, dated 1 February 2024 (Walker’s Submissions); Walker Group Bundle of Documents, lodged 2 February 2024 ('Walker Bundle')
Section 30(1A) of the AAT Act provides that a person whose interests are affected by a review application may apply to be a party. The Applicant submitted that four formulated considerations are applicable:[4]
(a)No technical rules apply to determine when a person’s interests are affected;
(b)Relevant interests are determined by the relevant enactment and each decision;
(c)The person’s interests must be more than those of a concerned member of the public; and
(d)The decision maker’s obligation to accord procedural fairness is relevant.
[4] Applicant’s Submissions at [25], citing NVCV and Secretary, Department of Infrastructure, Transport, Regional Development and Communications [2020] AATA 2662, [31].
The Applicant also submitted various factors are relevant to the exercise of the discretion within s 30(1A) of the AAT Act:[5]
(a)Whether the application to be made a party was made within a reasonable time;
(b)The stage of the proceeding and any consequential delay from adding a party;
(c)The nature of the interests affected by the decision;
(d)The nature of the review proceedings being conducted; and
(e)Whether the applicant to join has an ulterior purpose in seeking to join.
[5] Applicant’s Submissions at [26], citing Moorabbin Airport Corporation Pty Ltd and Minister for Infrastructure and Regional Development and Ors [2014] AATA 101, [113]-[117].
The Applicant submitted that the discretion should be exercised against an applicant:[6]
‘...where the person applying to be made a party has not applied within a reasonable time and his [or her] joinder at a late stage would unduly impede the expeditious conclusion of the proceedings or where, although an organisation has an object or purpose to which the decision relates, joinder is sought not for the purposes of protecting or supporting that interest but with some other end view.’
In applying such principles (which essentially are not in dispute) the Applicant submits in summary that Walker has not established that as at February 2024 its interests are affected by the delegate’s decision of 2 May 2019, nor established any nexus between that decision and any affected interest.
[6] Applicant’s Submissions at [28], citing Davies J in Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 1) [1980] AATA 78; (1980) 50 FLR 1; 3 ALD 74 at 10; 80-81.
The Applicant further contends that it can be “assumed” the Respondent formed a view, satisfying s 27 of the FOI Act, that it was not necessary for it to consult with Walker regarding the content of inter alia the Documents in Issue and that the Tribunal had “adopted that approach” in its 2021 decision.[7]
[7] Applicant’s Submissions at [32(d)].
The Applicant also submitted that in exercising its discretion, should the requisite Walker interests be found, the Tribunal should not allow the joinder as Walker “turned its mind to joining” on or about 7 October 2020. Thus Walker has left its application too late, and this will delay the determination of the remitted application.[8] Furthermore, it was submitted that Walker has an “ulterior purpose”, being that of delay.[9]
[8] Ibid, at [41]-[43].
[9] Ibid, at [48].
Against this, Walker submits, in summary, that its business information is within the content of the Documents in Issue,[10] which the Respondent essentially accepts, although from the latter’s perspective it may no longer claim exemption pursuant to ss 45 and 47E(d) of the FOI Act.[11] Clearly the Documents in Issue are the product of confidential discussions held between Walker and the Respondent and at an interlocutory level the Tribunal is satisfied that Walker has sufficient interest in them for the purposes of the joinder application, pursuant to s 30(1A) of the AAT Act.
[10] Walker’s Submissions at [6].
[11] Letter from Respondent to Walker dated 22 December 2023, as annexed at ‘A’ to Affidavit of Douglas Bishop sworn 2 February 2024, reproduced in Walker Bundle p 22-24.
Factors which support the Tribunal exercising its discretion in favour of the joinder include:
(a)Walker was never consulted by the Respondent of the Documents in Issue, as confirmed by the Respondent’s Counsel during the hearing.[12]
(b)It is by no means clear that the Respondent ever considered Walker’s interests apropos of the content of the Documents in Issue pursuant to s 27 of the Act. Contrary to the Applicant’s submission, the Tribunal is not satisfied that an inference can be drawn from the material before it that such a consideration did occur, particularly in circumstances where, as the Respondent submitted, the Documents in Issue had already been considered exempt from disclosure by it pursuant to ss 45 and 47E(d) of the FOI Act. Any earlier observation by the Tribunal on this point is not binding on the Tribunal upon the remittal, which will be determined on the material before it at the time of hearing.[13]
(c)So far as delay is concerned, Walker submits that it was first provided copies of the Documents in Issue on 22 December 2023.[14] By its Counsel it agreed at the hearing that its position is ‘having seen the documents in issue, that if permitted to join it will make submissions of substance as to the trade secrets content or business interests contents of those particular documents’.[15]
(d)The Documents in Issue were not created by Walker and the relevant descriptors in the Schedule to the Application for Review provided to Walker by the Respondent on 4 September 2020 give no insight into the content of the Documents in Issue.[16] In such circumstances the Tribunal is not satisfied that Walker should have contemplated a joinder application around that time.
(e)Further, it was not until 22 December 2023 that the Respondent informed Walker that it was contemplating whether or not it should maintain its claim that the Documents in Issue continued to be exempt from disclosure pursuant to ss 45 and 47E(d) of the FOI Act.[17]
[12] Transcript p 20, lines 19-24.
[13] See Australian Conservation Foundation Incorporated and Secretary, Department of Agriculture, Water and the Environment [2021] AATA 4619, [4].
[14] See above n 11.
[15] Transcript p 3, lines 4-9.
[16] Email from Respondent to Walker dated 4 September 2020 including attached Application for Review and Schedule of Documents, Walker Bundle, p 5, 10-21.
[17] Letter from Respondent to Walker dated 22 December 2023, Walker Bundle, p 22-24.
On balance, in its discretion, the Tribunal is not persuaded that Walker had an informed opportunity to make a joinder application earlier, as submitted by the Applicant. The Tribunal finds that Walker has only recently been appraised of the content of the Documents in Issue,[18] and in such circumstances should not be deprived of contributing to the evidence and submissions before the Tribunal in assisting it to reach the correct or preferrable decision on the remittal. Further, it is only since 22 December 2023, where the Respondent informed Walker that it may not maintain its claimed exemptions, that Walker’s interests in this application effectively developed.[19]
[18] See above n 11.
[19] See also Motor Trades Association of Australia v Trade Practices Commission [1993] ATPR 41-201, at [26].
The ultimate question of whether or not the Documents in Issue continue to contain business information which is exempt from disclosure is one that will be determined by the Tribunal at the hearing of the remittal, based upon the material before it at that time, including material from Walker. As Walker submitted, it is uniquely placed to provide the Tribunal with assistance on this point.
However, as the Applicant quite properly submitted, significant time has passed since it first sought access to, inter alia, the Documents in Issue. In light of the history of this review application and the fact that the Tribunal stands in the shoes of the decision maker it would be inutile to remit this application to the Respondent, as proposed by Walker. Unacceptable delay would result as a consequence.
Walker will be “given a reasonable opportunity to make submissions (and lodge any evidence) in support of the exemption contention” it wishes to make, as provided for by s 27(4)(a) of the FOI Act; and the Tribunal (again standing in the shoes of the agency or Minister) will have “regard to any submissions so made” as provided for by s 27(4)(b) of the FOI Act.
For the reasons above, the Tribunal is satisfied that the interests of Walker are affected by the decision under review, and in its discretion, satisfied that Walker should be joined, on terms as set out below.
Walker has had access to the Documents in Issue since 22 December 2023.[20] In such circumstances and so as to avoid any unnecessary delay, it should lodge any evidence it wishes to rely upon together with its Statement of Facts, Issues and Contentions within 14 days of this decision as a prerequisite to its joinder. Consistent with Walker’s bona fides, and lack of ulterior motive in bringing the joinder application, the Tribunal will list the review application for hearing as soon as possible and make directions accordingly.
[20] See above n 11.
INTERLOCUTORY DECISION
Pursuant to section 30(1A) of the AAT Act the Tribunal orders that upon Walker, by 4pm 14 March 2024, providing to the Tribunal and the Applicant and the Respondent:
(a)its Statement of Facts, Issues and Contentions; and
(b)and material or evidence it seeks to rely upon at the hearing of this review application,
it be made a party to the proceedings.
I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the interlocutory decision herein of Mr A. Maryniak KC, Member
...............................[sgd].........................................
Associate
Dated: 29 February 2024
Date of interlocutory hearing: 2 February 2024 Applicant Mr. Adam Beeson, General Counsel
Australian Conservation FoundationCounsel for the Respondent Mr. Nicholas Swan Solicitors for the Respondent Sparke Helmore Lawyers Counsel for the Other Party Mr. David Hughes Solicitors for the Other Party Clayton Utz
0
5
0