Bleicher, E.F. v Australian Capital Territory Health

Re: ENID FREDA BLEICHER
And: AUSTRALIAN CAPITAL TERRITORY HEALTH AUTHORITY
No. N G512 of 1990
FED No. 307
Costs
101 ALR 17

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sheppard(1), Gummow(1) and Einfeld(1) JJ.

CATCHWORDS

Costs - successful appellant from decision of Administrative Appeals Tribunal deprived of costs - examination of particular facts and circumstances - consideration of nature of correction which may be made to employer's record of employee's "personal affairs" - substitution of order that appellant have her costs of the appeal from the Tribunal.

Freedom of Information Act 1982, ss. 48, 50, 51, 55

HEARING

SYDNEY

#DATE 7:6:1991

The Appellant appeared in person.

Counsel for the Respondent: Ms F. Henderson

Instructed by: The Australian Government Solicitor

ORDER

The appeal be allowed.

The order made by a single Judge of this Court on 14 August 1990 that there be no order as to the costs of the appellant's appeal to it from the Administrative Appeals Tribunal, be set aside and that there be substituted therefor an order that the respondent pay to the appellant her costs of that appeal.

The respondent pay to the appellant her costs of this appeal.

This order not be taken out until the orders of 13 and 14 August 1990 disposing of the appeal from the Administrative Appeals Tribunal have been entered.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal from a judgment of a judge of this Court in which his Honour, notwithstanding that the appellant had succeeded in an appeal from the Administrative Appeals Tribunal, refused the appellant costs. On 13 August 1990 his Honour ordered that the appeal from the Tribunal be allowed and that the matter be remitted to the Tribunal to be determined according to law. His Honour's reasons for making no order as to costs were given in a supplementary judgment delivered orally on 14 August 1990.

In passing, it should be mentioned that the order which is appealed from has not been taken out. The order disposing of this appeal will not take effect until the order made at first instance has been entered.
The reasons why his Honour did not follow the usual course of awarding costs to a successful party stemmed from what his Honour described as "an unusual feature of the case" disclosed in an affidavit of Mr R.T. Bayliss which was filed in Court on the morning of the hearing concerning costs. A copy of it had been shown to counsel for the appellant the evening before. His Honour concluded from the affidavit that, at a time prior to the hearing before the Tribunal and at a time when she was legally represented (she had been unrepresented before the Tribunal), an open offer was made to her for settlement of the matter upon the basis that the respondent "would place an amendment on the two files in question which indicated that Mrs Bleicher has an honest and genuine belief that the information in the affidavit is incorrect". The reference to the affidavit was a reference to a document in question in the proceedings before the Tribunal. His Honour's reference to this offer came from a number of documents annexed to Mr Bayliss' affidavit, but particularly from an undated letter from the respondent to the appellant's solicitors. The letter said that, in the interests of settlement, the respondent was prepared to settle the matter by placing an amendment on the two files in question which would indicate that "Mrs Bleicher has an honest and genuine belief that the information in the affidavit is incorrect".
In support of her appeal to this Court the appellant has attempted to use an affidavit sworn by her on 15 February last, that is, after his Honour's orders were made, in which she said that she had no knowledge of Mr Bayliss' affidavit or its contents and no opportunity to discuss it with her counsel and give him instructions in relation thereto. When she became aware of the allegations in the affidavit, she sought permission to say something but, so she deposes, "was brusquely ordered by her counsel to sit down and be quiet." The appellant said that her counsel did not ask for a short adjournment to seek her instructions. The appellant said that some of the matters in the annexures to the affidavit were false and were bound to mislead the Court. In succeeding paragraphs she referred to certain of the annexures to the affidavit. In relation to the letter to her solicitors which has been earlier referred to, she said that the compromise there offered did not offer anything to which she was not entitled under para. 51(2)(d) of the Freedom of Information Act 1982 in the event that she failed before the Tribunal. She continued, "It did not offer any amendment in relation to the statement which was amenable to amendment. It therefore was not an offer of compromise."
It seems to us that his Honour took no more from Mr Bayliss' affidavit than what was contained in the letter. The words used by his Honour in his judgment are precisely those of the letter and it was on this basis that his Honour proceeded. There can be no doubt that the letter was sent and came to the appellant's attention. Her affidavit bears this out. Accordingly, her affidavit, if it were admitted in evidence in this appeal, would add nothing to the considerations which applied. There are, of course, difficulties about its admissibility which stem from the principles which guide an appellate court in determining whether to admit fresh evidence and also difficulties arising from the fact that the appellant was represented by counsel and, qua the respondent, was bound by his conduct of the case on her behalf. In the view we take of the matter, there is no need to consider the difficulties which stem from these considerations because his Honour took no more from Mr Bayliss' affidavit than what is contained in the letter. That gives rise to no issue. In the result, therefore, we propose to put aside the appellant's affidavit in our consideration of the problem. It is appropriate, however, to say that the appellant's former counsel has not been heard on whether he behaved in the way described in the appellant's affidavit. Nor has there been any cross-examination of the appellant about the matter. In the circumstances, even if the matter were relevant (which it is not), it would be quite impossible for us to make any finding about it.
The question which arises for determination is whether his Honour was correct in concluding that a statement on the relevant files in accordance with the letter was "the best she (the appellant) could hope to obtain." If that statement is not correct, his Honour's discretion has miscarried with the consequence that this Court must either exercise the discretion itself or remit the matter to his Honour so that the discretion can be exercised according to correct legal principle. The point in question is important, not only because it will determine whether or not his Honour was entitled, in the exercise of his discretion, to deprive a successful applicant of her costs; it also has an importance in relation to the rehearing which will perforce take place before the Tribunal pursuant to the substantive order which his Honour made in the proceedings. What his Honour said in his supplementary judgment on costs will be seen by the Tribunal as providing guidance to it in relation to the relief to which the appellant may be entitled if she is successful. If she is successful, the most that the appellant can expect to obtain from the Tribunal is a direction that a note be placed on the files to the effect of the statement offered in the letter from the respondent to the appellant's solicitors.
It follows that the matter has an importance apart from the question of costs. In order to resolve the question to be decided, it is first necessary to refer to the history of the various proceedings which have taken place. The account of the history we are about to give comes from his Honour's principal judgment dealing with the question of relief, but with some additions here and there. The history begins in 1982 when the appellant was employed by the predecessor of the respondent as an occupational therapist. She applied unsuccessfully for a permanent position. In considering the appellant's application for permanent employment, the employer had regard to a minute paper dealing with her work history which contained some unfavourable observations and opinions about the standard of her work and her attitude to it. The appellant made application, pursuant to s.48 of the Freedom of Information Act, to have the minute amended. We shall refer to s.48 and some other provisions of the Freedom of Information Act later on. The appellant requested that the minute "be totally repudiated." This request was refused and the matter came before the Administrative Appeals Tribunal. During the course of the hearing, the dispute was resolved by an agreement that the minute be amended by attaching to it two papers furnished by the appellant. The agreement was embodied in a formal decision that the Tribunal made on 23 May 1984. In short, the Tribunal ordered that all copies of the minute have added to it a notation indicating that the document had been amended under the provisions of the Act and that the documents should be read in conjunction with attached papers which were a summary of the amendments in a letter written by the Director of Personnel to the appellant on 10 March 1983 and parts of a letter written by the appellant in reply on 17 March 1983.
On 29 September 1985 the appellant applied to the respondent for access to four documents used at the hearing before the Tribunal. These documents were two affidavits and two witness statements. The respondent had copies of these documents - the originals were in the Tribunal files. The appellant was given access to the copies. On 5 November 1985 she requested that the documents be amended. In her letter making this request she asked the respondent to acknowledge that one of the affidavits was incorrect. She also said, "Perhaps they (i.e. the witnesses) would like to reconsider what they have written." The respondent treated the appellant's letter as a request for amendment under s.48 of the Act and refused it. The appellant then made a further application to the Tribunal seeking the review of the refusal. The matter came before a senior member of the Tribunal. The respondent's decision was affirmed in a written decision delivered on 23 March 1988. It was from that decision that the appellant appealed to this Court.
In its reasons for decision the Tribunal said that the appellant "did not call any evidence before me, relying entirely on legal submissions." The parties confined themselves to the tender of documents and legal argument. The Tribunal said that the thrust of the appellant's case was to deny the validity of the opinions expressed about her in the documents and to proffer other and more favourable comments from other persons about her. The Tribunal said that the question to be determined was whether the refusal to amend the documents "was the correct and preferable decision for the respondent to make."
In deciding to refuse relief the Tribunal held that none of the documents in question was "a document of an agency" within the meaning of s.48 of the Act and none of the documents was being used or was available for use by the respondent for an administrative purpose. The basis of the Tribunal's conclusion in this respect was that, once the documents were filed in the proceedings before the Tribunal, they became documents which were used in the administrative procedures of the Tribunal. The primary Judge was of opinion that this conclusion of the Tribunal was erroneous because the documents, notwithstanding that they had been used in the proceedings before the Tribunal, remained documents of an agency, namely, the respondent.
A second reason given by the Tribunal for refusing the appellant relief was that the documents fell outside s.48 of the Act in that they did not contain information relating to "the personal affairs" of the appellant. This was a matter which gave the primary Judge substantial concern. It is unnecessary to go to the detail of the implications which are involved in the question but it emerged, during the hearing, that further light had been thrown upon the meaning of the expression "personal affairs" in the judgment of this Court in Department of Social Security v Dyrenfurth (1988) 8 AAR 544 which was delivered after the Tribunal had given its decision. The earlier authorities, viewed in the light of what had been said in Dyrenfurth, led his Honour to conclude that the Tribunal had misdirected itself on the question whether the documents in question did or did not relate to the appellant's personal affairs. The Tribunal had said that the matters contained in the documents could not "be regarded as personal affairs." His Honour said that the more correct statement, according to Dyrenfurth, was that such matters ordinarily will not constitute "personal affairs" but may do so in exceptional cases. Because the Tribunal had applied the wrong test, there was an error of law. Accordingly, the decision of the Tribunal was set aside and the case remitted for a further hearing according to law. The primary Judge said that he did not know whether the application of the correct test would affect the ultimate result of the appellant's application but the appellant was entitled to have the proper test applied to her case.
That, coupled with Mr Bayliss' affidavit, was the background against which his Honour concluded in his judgment on costs that the best the appellant could hope to achieve in the further hearing before the Tribunal was the placing by the respondent of a statement on the two files in question which indicated that the appellant had an honest and genuine belief that the information in the affidavit (and statements) was incorrect.
The relevant sections of the Act are ss.48, 50 and 51. Section 48 is as follows:-

"Where a person (in this section referred to as the 'claimant') who is an Australian citizen, or whose continued presence in Australia is not subject to any limitation as to time imposed by law, claims that a document of an agency or an official document of a Minister to which access has been provided to the claimant under this Act contains information relating to his personal affairs-

(a) that is incomplete, incorrect, out of date or misleading; and

(b) that has been used, is being used or is available for use by the agency or

Minister for an administrative purpose, he may request the agency or Minister to amend the record of that information kept by the agency or Minister."

Section 50, so far as it is relevant, provides:-

"(1) Where an agency to which or Minister to whom a request is made under section 48 decides to amend the record of information to which the request relates, the agency or Minister may, in its or his discretion, make the amendment either by altering the record or by adding an appropriate notation to the record.

(2) Where an agency or Minister amends a record by adding a notation to the record, the notation shall:

(a) specify the respects in which the

information is incomplete, incorrect, out of date or misleading; and

(b) in a case where the information is claimed to be out of date - set out such information as is required to bring the information up to date."

Section 51, so far as it is relevant, is as follows:-

"(2) Where-

(a) an agency or Minister refuses to amend a record pursuant to a request under section 48;

(b) the claimant makes an application to the Administrative Appeals Tribunal for a review of the decision; and

(c) the Tribunal affirms the decision, the claimant may, by notice in writing, require the agency or Minister to add to the record a notation-

(d) specifying the respects in which the information is claimed by him to be incomplete, incorrect, out of date or misleading; and

(e) in a case where the information is claimed by him to be out of date - setting out such information as is claimed to be required to bring up to date or complete the information."

Subsection 51(4) of the Act provides for the procedure which is to be followed by an agency when a notice is given under subsec.51(2).

The essential difficulty about the appellant's primary request for the actual amendment of the documents is that they are either sworn affidavits or signed statements. It would seem inappropriate to us for them to be amended. Notwithstanding the terms of the statute, it could not be correct to make a direction that documents of this kind themselves be amended. His Honour, in the course of his principal judgment, described such a course as "mischievous". The difficulty, however, which his Honour's judgment on costs presents, arises from the fact that he has concluded that the most the appellant can hope for is the inclusion in the files of a statement that the appellant has an honest and genuine belief that the information in the documents is incorrect.
It is to be observed that there is a contrast between what may be done under s.48 of the Act and what may be done under s.51. Under the latter section, the notation which a person is entitled to require the agency to add to the record is a notation specifying the respects in which the information is claimed by the person to be incomplete, incorrect, out of date or misleading. On the other hand, s.48 contemplates a request that the agency amend the record of the information kept by it. Section 50 enables that to be done either by the making of an amendment to the record or by the addition of an appropriate notation to the record. In the event that it is a notation which is added, subsec. 50(2) provides that the notation is to specify the respects in which the information is incomplete, incorrect, out of date or misleading. The difference between the two provisions is that s.48 contemplates the amendment of the record (if necessary by notation) so that the record is corrected; s.51 contemplates no more than the notation of respects in which the information is claimed by the person to be incomplete, incorrect, out of date or misleading.
The appeal which the appellant brought to the Tribunal, and which is to be reheard, was against a decision made under s.48 not to amend the record. Provision for the appeal to the Tribunal is made by a combination of paras. 51(1)(a) and 55(1)(a). If the appeal to the Tribunal is successful, it will have power, acting for the agency, that is the respondent, to do what it should have done. But it will not be able to do anything which the respondent itself could not have done. All that the Tribunal will be empowered to do, if it thinks the appellant should succeed, is to alter the record or to add an appropriate notation to the record. Since the documents in question are affidavits and statements, it will be inappropriate, for reasons earlier given, for these to be altered, so that in practical terms the only relief under s.48 to which the appellant could be entitled, if successful, would be the addition of an appropriate notation to the record in accordance with what is provided for in subsec.50(2) of the Act. The Tribunal would not be empowered to substitute a decision of the kind contemplated by s.51 because s.51 will not arise for consideration unless the appellant fails ultimately in her appeal to the Tribunal. So much is clear from the provisions of subsec.51(2) of the Act which provides for the notation contemplated by it only where an agency has refused to amend a record pursuant to a request under s.48 and the Tribunal affirms that decision on appeal.

The relief which the primary Judge said was the only relief which the appellant could hope to obtain, was the placing of an amendment on the files in question which indicated that the appellant had an honest and genuine belief that the information in the affidavits and statements was incorrect. That is not quite the language of para. 51(2)(d) but it is closer to that language and more in accordance with it than it is to the language of ss.48 and 50. It would seem to us that it could not be appropriate for the Tribunal on the rehearing of the appeal to substitute a decision in the terms of that foreshadowed by his Honour. Such a course is not authorised by ss.48 and 50.
The question then arises whether the appellant, on the rehearing of her appeal, can reasonably hope to achieve a situation in which she obtains relief under ss.48 and 50, not by the alteration of the actual documents, but by the addition of a notation in accordance with subsec.50(2).
In this respect there are some further facts to be referred to. As mentioned, the appellant was not represented before the Tribunal. Notwithstanding the language which the Tribunal used in relation to the course of the proceedings, a reading of the transcript before the Tribunal leaves one in a state of uncertainty whether she intended herself to give oral evidence about the matters in the documents of which she complained and whether she was seeking to have the persons who made the affidavits and statements called before the Tribunal for the purposes of testing what they had said. Nothing is specifically said about these matters, but it is conceivable that the hearing before the Tribunal went as it did because of the preliminary questions whether the documents were documents of the respondent and whether the statements in them related to the appellant's personal affairs. If these questions had not been answered adversely to the appellant, it may be that the course of the hearing before the Tribunal would have been different. It emerged from what the appellant said to us during the hearing of the appeal that, when the matter goes back to the Tribunal, she does wish to cross-examine the persons responsible for the affidavits and statements and to give evidence herself about the matters contained in them. A difficulty will be the availability of the makers of the affidavits and statements. So much time has elapsed since 1982 when the matter first arose that it seems unlikely that witnesses will now be available. In this respect it should be noted that at the time the matter was before the Tribunal in 1988 it was informed that the maker of one of the two statements had emphatically refused to have his statement amended. Furthermore, two of the other witnesses had then retired from the employment of the respondent and were no longer in touch with it.
The hearing being a fresh hearing, it will be a matter for the appellant how her own case is conducted. The fact that she may have decided not to lead oral evidence at the previous hearing will not prevent her doing so when the matter is heard again. It would seem wrong to us to speculate on whether the practical difficulties occasioned by the passing of so much time, the frailty of human recollection and the difficulty of obtaining the attendance of witnesses may provide such an obstacle that they themselves will prevent the appellant from succeeding. But it is open to her to endeavour to persuade the Tribunal that she is correct in what she says and to seek from it the substitution of the amendment of the record for which s.48 provides. In those circumstances it seems to us that his Honour fell into error in concluding that the only relief which the appellant could obtain was the addition of a notation to the effect that she herself claimed that what the witnesses had said was incorrect. It follows that his Honour's discretion miscarried. The order made by him that there be no order as to costs should be set aside and there should be substituted an order that the respondent pay the appellant's costs of the hearing before him. The appellant should also have her costs of the appeal although, because she appeared in person, they may be nominal only.
Before concluding, we make it clear that nothing we have said is intended to cut across what his Honour decided about "personal affairs". The meaning of that expression was not a matter which arose for consideration in the appeal to us and we express no opinion about it. The question whether the affidavits and statements in question relate in whole or in part to the appellant's personal affairs remains an open one. When the matter is reheard, the Tribunal, applying the test propounded in the judgment of the primary Judge, will need to be satisfied that they do. If they do not, that, subject to the operation of s.51 of the Act, will be the end of the matter.

[1991] FCA 307

07 JUNE 1991