Brighton-Stangstins and Australian Competition and Consumer Commission
[2008] AATA 773
•29 August 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 773
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0207
GENERAL ADMINISTRATIVE DIVISION ) Re JASON BRIGHTON-STANGSTINS Applicant
And
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Respondent
DECISION
Tribunal Mr Egon Fice, Member Date29 August 2008
PlaceMelbourne
Decision The Tribunal declines to recommend to the Attorney-General that the costs of Mr Brighton-Stangstins in relation to this application be paid by the Commonwealth. (sgd) Egon Fice
Member
FREEDOM OF INFORMATION – application for recommendation of costs – access to correspondence and documents between ACCC and Westpac Banking Corporation – whether applicant successful or partially successful where consent agreement reached – financial hardship – benefit to public – commercial benefit to applicant – reasonableness of authorised reviewing officer’s decision
Administrative Appeals Tribunal Act 1975 ss 26, 34J, 35 and 42C
Freedom of Information Act 1982 ss 22, 26, 36, 40(1)(d), 42, 43(1)(c)(ii), 45, 54, 55 and 66
Freedom of Information Amendment Bill 1983
Trade Practices Act 1974
Uniform Consumer Credit Code
Cashman & Partners v Secretary, Department of Human Services and Health (1995) 61 FCR 301
Cosco Holdings Pty Ltd and Department of Treasury (1999) 54 ALD 466
Hatfield v Health Insurance Commission (1986) FCR 487
Re Kabalan (1993) 113 ALR 330
Re Kim Yee Chan and Department of Immigration and Ethnic Affairs (1985) 8 ALN N52
Re Lianos and Secretary, Department of Social Security (No 2) (1985) 9 ALD 43
Re Lordsvale Finance Ltd and Department of Treasury (No 4) (1986) 12 ALD 327
Re Paterson and Department of Arts, Heritage and Environment (No 2) (1985) 8 ALD 227
Re Paterson and Department of Home Affairs and Environment (1985) 7 ALD 403
Re Rae and Department of Arts, Heritage and Environment (1985) 7 ALD 449
Smith v Commissioner of Taxation of the Commonwealth of Australia (1987) CLR 513
REASONS FOR DECISION
29 August 2008 Mr Egon Fice, Member 1. In August 2006 Mr Jason Brighton-Stangstins applied to the Australian Competition and Consumer Commission (ACCC) under the Freedom of Information Act 1982 (FOI Act) for access to correspondence and documents between the ACCC and Westpac Banking Corporation (Westpac) regarding fees, charges, assessments, adjustments and calculation of currency conversions in respect of foreign currency transactions on MasterCards. He also requested access to documents that referred to the Trade Practices Act 1974 (Trade Practices Act) or the Uniform Consumer Credit Code (UCCC) regarding those matters.
2. After notifying Westpac of Mr Brighton-Stangstins’ FOI request and seeking Westpac’s objection to the release of documents it had identified, the ACCC provided Mr Brighton-Stangstins’ with a schedule identifying the documents which it believed fell within the terms of his request. The ACCC granted Mr Brighton‑Stangstins access to some of those documents; allowed partial access to one of the documents; and refused his request in respect of four documents. In respect of the remaining two documents, the ACCC indicated that release of those documents was subject to third party consultation.
3. Following an internal review by the ACCC, an Authorised Reviewing Officer (ARO) affirmed the original decision to deny access to four of the documents identified and varied the decision in respect of two of the remaining documents sought by Mr Brighton-Stangstins. Mr Brighton-Stangstins then filed an application for review of the ACCC decision under s 55 of the (FOI Act).
4. On the day prior to hearing commencing, the Tribunal was notified that the parties had reached agreement regarding Mr Brighton-Stangstins’ FOI request. The terms of the agreement were provided to the Tribunal which made a decision in accordance with s 42C of the Administrative Appeals Tribunal Act 1975 (AAT Act).
5. The terms of the agreement between the parties provided for an application to be made by Mr Brighton-Stangstins pursuant to s 66 of the FOI Act seeking a recommendation to the Attorney-General that his costs in the proceedings before the Tribunal be paid by the Commonwealth. The parties consented to the Tribunal determining the s 66 issue on the papers and I have agreed that it is appropriate to do so in accordance with s 34J of the AAT Act.
RELEVANT BACKGROUND
6. Mr Brighton-Stangstins’ initial application under the FOI Act was made to the ACCC on 5 August 2006. As the request involved documents concerning the business affairs of Westpac, the ACCC notified Westpac on 19 September 2006 of the request, seeking Westpac’s objections, if any, to the release of the documents identified. Westpac’s solicitors, Allens Arthur Robinson, responded to the FOI delegate on 4 October 2006 stating that Westpac objected to the provision of any of the documents identified and setting out the exemptions it relied upon. Westpac’s solicitors submitted that relevant documents were provided by Westpac to the ACCC on a voluntary basis and that the protection of confidentiality was crucial. Westpac’s solicitors also stated that disclosure of the documents in response to the FOI request would prejudice the future supply of information by Westpac to the ACCC and its proper and efficient enforcement of the Trade Practices Act. On 9 October 2006 the ACCC’s FOI delegate informed Allens Arthur Robinson that it had made a decision to grant partial access to Westpac’s documents.
7. On 10 October 2006 the ACCC notified Mr Brighton-Stangstins that it had identified 10 documents which were relevant to his request and it attached a schedule of documents as follows:
ATTACHMENT A
Schedule of documents
| Doc No | Author | Addressee | Date | Description | No of folios | Access | Findings, Reasons and Brief Description |
| 1 1 | Kennedy G Queensland Department of Fair Trading | Napier A ACCC | 22.5.2001 | (with annotations) | 4 | Part granted | s.22 – Deletion of exempt or irrelevant material |
| 2 2 | Smith D ACC | The Proper Officer | 29.6.2001 | Letter | 2 | Granted | |
| 3 3 | Smith D ACC | A third party | 29.5.2001 | Letter | 3 | Subject to | |
| 4 4 | Gunton K ACC | 5.6.2001 | Filenote | 1 | Granted | ||
| 5 6 | A third party | Gunton K ACCC | 7.6.2001 | Facsimile with attachments | 35 | Subject to | |
| 6 7 | Norman P Coudert Brothers | Gunton K ACCC | 17.6.2001 | Facsimile With attachment | 12 | Granted | |
| 7 8 | ACCC | Undated | Staff Paper | 3 | Refused | s.26 – Internal working documents s.40(1)(d) – Conduct of the Commission s.43(1)(c)(ii) – Prejudice future supply of information s.45 – Breach of confidence | |
| 8 9 | ACCC | Undated | Minutes | 5 | Refused | s.22 – Deletion of exempt or irrelevant material s.36 – Internal working documents | |
| 9 10 | ACCC | ACCC | 25.6.2001 | | 1 | Refused | s.36 – Internal working documents |
| 10 12 | ACC | 12.11.2001 | Filenote | 2 | Refused | s.36 – Internal working documents s.40(1)9d) – Conduct of the Commission s.43(1)(c)(ii) – Prejudice future supply of information s.45 – Breach of confidence |
8. The effect of the ACCC’s decision was that it granted access to two of the documents identified, granted access in part to one document, granted access to one document subject to third party consultation and partially granted access to one document subject to third party consultation. It refused access to documents 7, 8, 9 and 10 for reasons set out in the schedule.
9. Following an internal review by the ACCC, the ARO affirmed the original decision on 23 January 2007 to deny access to documents 7-10 inclusive. The ARO varied the decision in respect of documents 3 and 5, refusing to grant access to those documents for the reasons set out in the schedule of documents accompanying the reviewed decision. Attached to the amended schedule of documents was a document setting out the ACCC’s findings on material questions of fact.
10. On the day of the decision handed down by the ARO, Mr Brighton-Stangstins lodged an application for review of that decision with the Tribunal.
11. On 26 June 2007 the ACCC released to Mr Brighton-Stangstins redacted versions of documents 8 and 9. On 31 July 2007 Mr Brighton-Stangstins’ then solicitor advised the ACCC’s solicitors that Mr Brighton-Stangstins’ request seeking access to the redacted portions of documents 8 and 9 was withdrawn.
12. On 2 July 2007 Westpac advised the ACCC that it no longer sought to maintain its submission that documents 3 and 5 should be exempt because the documents were provided to Mr Brighton-Stangstins under an order made by the Victorian Civil and Administrative Tribunal (VCAT) in a proceeding before it.
13. In a consent decision made under s 42C of the AAT Act on 24 July 2007, documents 3 and 5 were released to Mr Brighton-Stangstins.
14. On 1 August 2007 the ACCC and Mr Brighton-Stangstins agreed that the redacted parts of documents 8 and 9, which were released to Mr Brighton-Stangstins on 26 June 2007, were no longer the subject of the application. The parties agreed that the review would then be limited to the decision relating to documents 7 and 10. The Tribunal made Orders by consent on 6 August 2007 in accordance with the agreement.
15. On 31 August 2007 the Tribunal received a request for directions, by consent of both parties, regarding the filing and service of the Statement of Facts and Contentions. It was agreed that the applicant file and serve his Statement of Facts and Contentions on or before 1 October 2007 and that the respondent file and serve its reply on or before 29 October 2007. The Tribunal made directions in accordance with that agreement on 10 September 2007.
16. On 11 September 2007 W J Gilbert & Co, Mr Brighton-Stangstins’ solicitors, notified the Tribunal that they had ceased to represent him in this matter. On 28 September 2007 the Tribunal was notified by Maurice Blackburn Cashman (Maurice Blackburn) that it now acted on behalf of Mr Brighton-Stangstins. Given the change of legal representation, the Tribunal amended its Direction regarding the filing and service of the Statement of Facts and Contentions. Mr Brighton-Stangstins was required to do so on or before 2 November 2007 and the ACCC on or before 30 November 2007.
17. On 29 November 2007 the solicitors for the ACCC, the Australian Government Solicitor (AGS), wrote to Maurice Blackburn stating that it no longer intended to rely on its s 36 and s 40(1)(d) exemption claims in respect of documents 7 and 10. AGS then stated that parts of documents 7 and 10 continued to be subject to claims for legal professional privilege (s 42). Attached to the letter was a revised schedule indicating that both documents were now subject only to s 42 and s 22 exemptions. The s 22 deletions made on the basis of relevancy were not in dispute. However, the letter said nothing about prior exemptions claimed under s 43(1)(c)(ii) and s 45 in respect of both documents. The ACCC sought an agreement in accordance with the matters set out in its letter.
18. On 5 December 2007 both parties executed Terms of Agreement which provided that documents 7 and 10 be released in part, subject to the exemption claimed. AGS wrote to the Tribunal attaching the Terms of Agreement and stating that, following consideration of Mr Brighton-Stangstins’ affidavit sworn 2 November 2007, the ACCC formed the view that, on balance, the public interest analysis was affected by Mr Brighton-Stangstins’ material and therefore parts of documents 7 and 10 should be disclosed. On 6 December 2007 the Tribunal gave effect to the settlement terms in accordance with s 42C of the AAT Act.
19. On 6 December 2007 AGS notified the Tribunal that the parties had settled their dispute attaching the terms of an agreement which was signed by both parties’ representatives. The agreement set out as follows:
The parties agree to the making of a decision pursuant to section 42C of the Administrative Appeals Tribunal Act 1975 in the following terms:
1.That the application be dismissed.
2.Any application for costs pursuant to s 66 of the Freedom of Information Act 1982 be dealt with on the papers.
Date: 6 December 2007
20. On 13 December 2007 I made a decision in accordance with s 42C(2) of the AAT Act dismissing Mr Brighton-Stangstins’ application save for the question of costs.
LEGISLATION
21.Section 66 of the FOI Act provides:
66 Tribunal may make recommendation that costs be available in certain circumstances
(1)Where:
(a)a person makes application to the Tribunal under section 55 for review of a decision constituting the action to which the complaint relates; and
(b)the person is successful, or substantially successful, in his or her application for review;
the Tribunal may, in its discretion, recommend to the Attorney-General that the costs of the applicant in relation to the proceedings be paid by the Commonwealth.
(2)Without limiting the generality of the matters to which the Tribunal may have regard in deciding whether to make a recommendation under subsection (1), the Tribunal shall have regard to:
(a)the question whether payment of the costs or any part of the costs would cause financial hardship to the applicant;
(b)the question whether the decision of the Tribunal on review will be of benefit to the general public;
(c)the question whether the decision of the Tribunal on review will be of commercial benefit to the person making application to the Tribunal; and
(d)the reasonableness of the decision reviewed by the Tribunal.
(3)The Attorney-General may, pursuant to a recommendation of the Tribunal under subsection (1), authorize the payment of costs to an applicant.
22.When AGS notified Maurice Blackburn that it intended to rely on the s 42 exemptions in the FOI Act regarding documents 7 and 10, Maurice Blackburn responded by stating that the ACCC was not permitted to vary its decision without the consent of the applicant and the Tribunal, in accordance with s 26 of the AAT Act. Section 26 provides:
26Restriction on powers of decision-maker after application for review is
made
(1)Subject to section 42D, after an application is made to the Tribunal for a review of a decision, the decision may not be altered otherwise than by the Tribunal on the review unless:
(a)the enactment that authorised the making of the application expressly permits the decision to be altered; or
(b)the parties to the proceeding, and the Tribunal, consent to the making of the alteration.
(2)A reference in subsection (1) to the alteration of a decision is a reference to:
(a)the variation of a decision; or
(b)the setting aside of a decision; or
(c)the setting aside of a decision and the making of a decision in substitution for the decision set aside.
SECTION 66(1) OF THE FOI ACT
23. The Tribunal’s discretion to recommend to the Attorney-General that the costs of an applicant in relation to proceedings under the FOI Act be paid by the Commonwealth can only be exercised where a person has made an application to the Tribunal under s 55; and the person has been successful or substantially successful in his or her application for review.
24. There is no dispute about the fact that Mr Brighton-Stangstins made an application under s 55 of the FOI Act for a review by the Tribunal.
25. While a reading of s 66(1)(b) of the FOI Act might ordinarily lead one to believe that it requires the Tribunal to conduct a review and come to a decision about disclosure of documents sought under the FOI Act before being able to determine whether an applicant has been successful or substantially successful in his or her application for review, the Tribunal has, since at least 1985, read s 66(1)(b) more broadly. According to Deputy President A N Hall in Re Paterson and Department of Home Affairs and Environment (1985) 7 ALD 403, at 407-408:
15. It would, for example, be consistent with ordinary usage to say that a plaintiff in a damages claim whose action is settled out of court has “succeeded” in his action, even though the court has not been asked to conduct a hearing, to give a decision or approve the terms of settlement. In other words, as a matter of ordinary English, a person may be “successful” or “substantially successful” in an application or action either as a consequence of a favourable decision of the court or tribunal called upon to decide the matter or as a consequence of a favourable result achieved by concession or agreement without the necessity for a formal hearing. …
26. While Deputy President Hall was of the view that s 66(1)(b) was capable, if it stood alone, of the meaning set out above, he accepted that adopting such a construction created some problems with the subsections set out in s 66(2), particularly where reference is made to the decision of the Tribunal on review, and the decision reviewed by the Tribunal. Deputy President Hall then considered whether s 66(1) should be read down as applying only where there has been a decision given by the Tribunal on review, or whether s 66(1) could be construed in the wider sense as he described above. Deputy President Hall resorted to the second reading speech and the Explanatory Memorandum relating to the Freedom of Information Amendment Bill 1983 and he accepted that those documents lent weight to the narrower construction of s 66(1)(b), but were not conclusive. He then considered a number of practical considerations including the fact that at times, an agency may not decide to grant access to the documents sought until the very last moment. By that stage an applicant may well have committed himself or herself to the bulk of legal costs and therefore there was potential for serious injustice to an applicant where, had the agency not changed its decision thereby rendering the hearing unnecessary, the applicant may well have been entitled to a costs recommendation following a decision of the Tribunal in his or her favour.
27. This lead to the Deputy President deciding that the object and purpose of the Act would be furthered by treating s 66(1) as the dominant provision and by reading s 66(2) as subordinate; and not as limiting the scope of subsection (1).
28. Following his decision in the first Re Paterson case, which was treated as a jurisdiction hearing, Deputy President Hall went on to hear substantive argument regarding the application of s 66 of the FOI Act in Re Paterson and Department of Arts, Heritage and Environment (No 2) (1985) 8 ALD 227. Deputy President Hall noted that since he handed down his decision in respect of the jurisdiction question, two further Presidential Members, Deputy President R K Todd in Re Rae and Department of Arts, Heritage and Environment (1985) 7 ALD 449 and Deputy President I R Thompson in Re Kim Yee Chan and Department of Immigration and Ethnic Affairs (1985) 8 ALN N52 had also considered the question. He noted that both Deputy Presidents agreed in principle with the broad purposive construction of s 66(1) that he adopted when dealing with the Re Paterson jurisdiction case, albeit with some difference of opinion. Deputy President Todd indicated that he did not think that the course proposed by Deputy President Hall should always be followed. Deputy President Thompson said whether there should be consideration of the matters referred to by Deputy Presidents Hall and Todd would depend on the circumstances of the particular case. Deputy President Thompson also emphasised that the extent of any enquiry into the reasonableness of the decision to which the application for review related must be kept within sensible limits.
29. In agreeing with the observations of Deputy President Thompson in Re Chan, Deputy President Hall in Re Paterson (No 2) said:
… It was and is my view that the mere fact that an applicant can be seen to have been successful in his application, either by reason of a decision of the Tribunal on review or because the agency has ultimately released the documents voluntarily prior to hearing, does not, of itself, entitle the applicant to a favourable exercise of the Tribunal's discretion. A finding of “success” or “substantial success” does no more than open the door to the exercise of the discretion.
30. As far as applying the mandatory considerations set out under s 66(2)(b), (c), and (d) are concerned, Deputy President Hall expressed the view that so far as the circumstances of each case may allow, the criteria set out in those subsections, where there has been no decision, should be dealt with by way of analogy in order to ensure consistency of approach in different factual circumstances.
31. The approach taken by Deputy President Hall seems to have been endorsed by Beasley J in Cashman & Partners v Secretary, Department of Human Services and Health (1995) 61 FCR 301, at 307.
32. Although I have some concern about the fact that the parties agreed to the dismissal of this application prior to its hearing before me, and a dismissal of an application would, in ordinary circumstances, indicate that an applicant has been unsuccessful, the terms of the consent agreement nevertheless included the term relating to an application under s 66 of the FOI Act. While it appears that I can disregard the fact that there has been no decision and look at the results of Mr Brighton-Stangstins’ application for documents from the ACCC, I must say that the approach to this issue by the various Deputy Presidents to which I have referred above leave me with the feeling of unease about proceeding with an application under s 66 of the FOI Act. Nevertheless, given the ACCC concedes that the voluntary release of documents 3 and 5 and the release of the redacted versions of documents 7, 8, 9 and 10 have resulted in substantial success to Mr Brighton-Stangstins, I will proceed to consider the matters set out in s 66(2) and any other relevant matters raised by the parties on this s 66 application.
SECTION 66(2)(a) – FINANCIAL HARDSHIP TO THE APPLICANT
33. Mr Brighton-Stangstins submitted that the payment of his costs in this proceeding have caused him financial hardship. He indicated that he had paid the sum of $3,300 and had been invoiced a further $770 by W J Gilbert and Co. The copy invoice provided to the Tribunal indicates the $770 invoice was for advice received regarding the possible re-instatement of Mr Brighton-Stangstins’ application following his consent to the dismissal. In addition to those cost, Mr Brighton-Stangstins also produced a tax invoice from Maurice Blackburn in the amount of $27,496. 65 plus counsels’ fees of $6,600. The invoice does not detail the nature of the work conducted either by Maurice Blackburn or counsel.
34. Mr Brighton-Stangstins submitted it mattered not that the fees owing to Maurice Blackburn and counsel would only become payable in the event of a recommendation to the Attorney-General for the payment of costs. In other words the services of Maurice Blackburn and counsel were provided on a no win no fee basis.
35. The ACCC submitted that the amount of $770 invoiced by Mr Brighton-Stangstins’ solicitors in respect of the re-instatement of this application is not a cost which falls within s 66 of the FOI Act. That is, it is not a cost of the applicant in relation to the proceedings. According to the ACCC, s 66 addresses a cost recommendation in relation to an application for review. The ACCC has not addressed the meaning of the phrase in relation to. The courts have frequently held the phrase to have the widest of meaning (see for example Hatfield v Health Insurance Commission (1986) FCR 487; Smith v Commissioner of Taxation of the Commonwealth of Australia (1987) CLR 513). In my view, given the broad way in which the phrase in relation to has been interpreted by the courts in various contexts, I see no reason why the costs of seeking advice regarding an agreement reached by the parties in resolution of the dispute which is the subject of the proceedings would not be properly covered by s 66 of the FOI Act.
36. Mr Brighton-Stangstins submitted that I should have regard to the fees payable to Maurice Blackburn and counsel when determining whether or not those costs would cause him financial hardship. I cannot accept that submission. Because those fees were incurred on a no win no fee basis, whatever the outcome of this application, the contingent invoice issued by Maurice Blackburn could not affect Mr Brighton-Stangstins’ financial position. It could not cause financial hardship.
37. It follows that the only relevant consideration under this topic is whether the payments of $3,300 and $770 to W J Gilbert and Co would cause Mr Brighton-Stangstins financial hardship.
38. Mr Brighton-Stangstins provided an affidavit setting out his financial position. However, he requested that the material set out in that affidavit dealing with his current financial position be subject to an Order under s 35 of the AAT Act, restricting its disclosure. I made an Order limiting disclosure on 20 March 2008. I am therefore unable, in these reasons, to detail the basis for my findings regarding hardship. I can, however, set out in general my findings.
39. In his affidavit of 12 March 2008 Mr Brighton-Stangstins set out his earnings, investments and expenditure. In supplementary submissions, he said it was irrelevant whether the costs to W J Gilbert and Co have been paid or are owing. I agree with his submission on that point. The question posed by s 66(2)(a) is whether payment of those costs would cause financial hardship. However, having examined the material provided by Mr Brighton-Stangstins regarding his income, expenditure and assets, I cannot conclude that payment of W J Gilbert and Co’s invoices for $3,300 and $770 would cause him financial hardship. The net position of one of his assets, which appears to be readily disposable, would well and truly cover those costs. I should also add that included among the documents attached to his affidavit was a payslip from his current employer. That payslip indicates that his net salary is paid into a Westpac Bank account, although he has not made any disclosure in his affidavit of that account. That fact does not give me any confidence that Mr Brighton-Stangstins has made full disclosure of his financial position.
40. The term hardship is not defined in the FOI Act. The Shorter Oxford English Dictionary defines hardship in the following way:
1.The quality of being hard to bear; hardness; severity.
2.Hardness of fate or circumstance; severe toil or suffering; extreme privation.
41. The Federal Court of Australia (Gummow J) said in Re Kabalan (1993) 113 ALR 330 at 332:
… Any condition which presses with particular asperity upon a person may be described as a hardship. …
42.In Re Paterson (No 2), the Tribunal said, at 238:
… “financial hardship” means hardship caused to the applicant by reason of the financial burden of being obliged to meet the costs of the application from its own resource. … It is not enough, … for the applicant to assert that if it is obliged to meet its own costs, it will deplete the funds otherwise available to it to pursue its objects. Every successful applicant, no matter how wealthy, would suffer financial hardship on that basis.
43. The evidence provided by Mr Brighton-Stangstins does not indicate that were he to pay his solicitors’ costs, it would cause him severe suffering or privation. Accordingly, I find that if Mr Brighton-Stangstins were required to pay his solicitors’ costs, it would not cause him financial hardship.
SECTION 66(2)(b) – BENEFIT TO THE GENERAL PUBLIC
44. As I understand it, I am required to determine whether the result achieved by Mr Brighton-Stangstins as a consequence of his application under the FOI Act would be of benefit to the general public.
45. The approach the Tribunal should take in addressing this question was explained by Beazley J in Cashman’s case at 307, where she said:
The Tribunal has consistently, and in my view correctly, accepted that the proper approach to the question of benefit to the general public is that stated in Cazalas v US Department of Justice (1983) 709 F 2d 1051 at 1053. In Cazalas, it was held that the question of benefit to the general public was concerned with benefits flowing from the fact that information previously withheld by the agency is now accessible to the community. In other words, the question is concerned with the consequences or result of the application for review, not with the Tribunal's reasons for decision: see also Re Lianos and Secretary, Department of Social Security (No 2) (1985) 9 ALD 43 at 48; Re Jacobs and Department of Defence (1988) 9 AAR 446 at 455.
46. In Re Lianos and Secretary, Department of Social Security (No 2) (1985) 9 ALD 43 at 49, Deputy President Hall said:
… There is, in my view, a relevant benefit to the general public, within the contemplation of the FOI Act, when documents containing information with respect to issues of widespread public interest and concern are disclosed pursuant to the provisions of the Act. Such benefits may be intangible, but they are nevertheless real having regard to the stated object of the Act and the right to know which the Act has created. …
47. Deputy President Todd in Re Lordsvale Finance Ltd and Department of Treasury (No 4) (1986) 12 ALD 327 at 329 said:
Paragraph (b) requires the Tribunal to have regard to whether the decision will “be of benefit to the general public”. This seems somewhat narrower than considering whether the decision is in the public interest, with “benefit” suggesting an element of advantage not necessarily required by “the public interest”.
48. Before examining the submissions of both parties in this matter, I should make the point that in order to satisfy s 66(2)(b), it must be demonstrated that the documents obtained as a result of the FOI request will be of benefit to the general public. Note the use of the word will rather than may. The difference is significant. To demonstrate that the documents obtained will be of benefit to the general public requires convincing evidence that the benefit will flow from the documents themselves.
49. In his submissions Mr Brighton-Stangstins contended that benefits will arise to the general public in two ways:
·The first, that a member of the general public could use the documents to evaluate the option of commencing individual or class action proceedings in order to recover any fee which may have been charged in breach of the law; and
·Secondly, it would permit the general public to scrutinise the operations of the ACCC so as to determine whether its functions have been properly and efficiently discharged.
50. Regarding the possibility of actions against Westpac, Mr Brighton-Stangstins referred to actions taken in the USA and in New Zealand regarding disclosure of the so called currency conversion fee. The problem with these examples is that they involve legal action in entirely different jurisdictions. Although Mr Brighton‑Stangstins submitted that the legislation in New Zealand is similar to that in Australia, I had no evidence before me regarding the similarity. Without evidence, I cannot say that the same causes of action are necessarily available to Australian card holders. Although the legal actions in those two jurisdictions involved proper disclosure of the MasterCard currency conversion rate (MCCR), there was no evidence before me regarding disclosure of facts as a consequence of the FOI application which would indicate a similar action might succeed in Australia. Mr Brighton-Stangstins submitted that released document 5 confirmed that Westpac did not disclose to its cardholders the amount of the MCCR. He contended that the general public could use this document to evaluate the option of commencing individual or class proceedings and that it could be used in evidence.
51. However, it seems to me that Westpac’s failure to disclose the MCCR was well and truly publicised in Australia prior to Mr Brighton-Stangstins obtaining document 5 from the ACCC. The fact of non-disclosure by itself was not new. If any member of the public had been minded to make further enquiries regarding the possibility of recovery of fees charged in contravention of the Trade Practices Act or the UCCC, they would not, in my opinion have had any benefit from the fact that document 5 has now been publicly disclosed. It is highly speculative to suggest, as Mr Brighton-Stangstins does, that the disclosure of document 5 would result in a large cost savings to any particular litigant minded to take on Westpac. The document merely confirms what was already known and reported in the press. The principal issue in any litigation, in my view, would be whether the conduct in fact breached any law in this jurisdiction. No such legal advice became available as a consequence of Mr Brighton-Stangstins’ FOI application. Even the fact that the ACCC reached the view that Westpac’s conduct was unlikely to breach the UCCC would not assist any potential litigant. No reliance could be placed on that view by any party.
52. As to the second basis which Mr Brighton-Stangstins submits would benefit the general public, rather than disclosing that the ACCC did not properly perform its function when investigating this matter, in my view the documents disclose the contrary. Documents 7 and 10 in particular indicate that cardholders were advised that currency conversion was subject to rates set by the relevant scheme but what was not disclosed was how the MCCR was calculated. The ACCC canvassed the possibility of breaches of the UCCC and the Trade Practices Act. The outcome of the ACCC’s enquiry was that Westpac renamed its currency conversion fee to foreign currency transaction fee. On the very limited information that I have from the documents produced by the ACCC as a consequence of Mr Brighton‑Stangstins FOI application, there is nothing which would give any member of the general public concern in the way that the ACCC conducted its enquiry into credit card fees. Furthermore, Mr Brighton-Stangstins submitted that he had provided the documents in his possession to Choice Magazine for their perusal. He did not indicate the outcome of having done so. Nevertheless, it is reasonable to infer that as those documents were registered in Choice Magazines’ data base, if anybody had been concerned by the ACCC’s conduct of the investigation, evidence of that would have arisen.
53. Mr Brighton-Stangstins was also critical of the ACCC for stating that, in its view, the conduct by Westpac was unlikely to have breached the UCCC. Nevertheless, one of the recommendations made by the ACCC following its enquiry was that the matter be referred to the UCCC Management Committee for consideration of appropriate action under relevant state and territory legislation. That seems to me to have been an appropriate response and one that is better undertaken by state and territory fair trading regulatory bodies if they deem fit. There is no evidence that any action has resulted from any referral to the UCCC Management Committee. I should also add that the documents disclosed that these actions were taken by the ACCC in November 2001. This is well before Mr Brighton-Stangstins issued his FOI application. If there had been any benefit to the general public as a result of disclosure of these documents, one would have expected there to be evidence of that. There is none.
54. Finally, Mr Brighton-Stangstins submitted that Westpac refunded cardholders a proportion of fees charged in connection with foreign currency transactions which occurred prior to April 2007. However, as Mr Brighton-Stangstins accepts, the basis for Westpac acting in that manner has not been revealed. He does not suggest that it was as a result of him obtaining those documents on his FOI application. Therefore, while I accept what Mr Brighton-Stangstins says about the fact that the more relevant material obtained, the greater the opportunity the public may have in identifying paths of enquiry and administration failures, there is nothing in the documents obtained by him on his FOI application which discloses that they will be of benefit to the general public. In fact, given the passage of time since these documents were revealed, and the absence of any reaction by any other consumer organisations, it is, in my view, safe to say that the documents are not of any benefit to the general public.
SECTION 66(2)(c) – COMMERCIAL BENEFIT TO THE APPLICANT
55. Section 66(2)(c) of the FOI Act is a provision that has a negative effect when deciding whether the Tribunal should make a recommendation under subsection (1). Mr Brighton-Stangstins submitted that he has not and will not obtain any commercial benefit from the release of the documents obtained on his application and that is not disputed by the ACCC. There being no other evidence, I am satisfied that Mr Brighton-Stangstins will not obtain any commercial benefit as a consequence of the release of documents to him on his FOI application.
SECTION 66(2)(d) – REASONABLENESS OF THE DECISION
56. The reference to the decision reviewed by the Tribunal in s 66(2)(d) of the FOI Act is a reference to the decision made on internal review under s 54(1) of the FOI Act (see Re Paterson (No 2) and Cashman). In this case, it is the decision of the ACCC’s ARO made on 23 January 2007.
57. In determining the reasonableness or otherwise of an agency’s decision under the FOI Act, I agree with what Deputy President Hall said in Re Paterson (No 2) at 241 where he said:
55 In my view, it is not necessary in order to determine the “reasonableness” of the agency's decision to decide whether the Tribunal would itself have upheld or rejected the claims of exemption (cf Cuneo at 1365). A decision refusing access may, in my view, be seen as “reasonable” if there was, on the evidence and material before the agency, a sound basis in law for claiming the exemption.
58.Deputy President Thompson in Re Chan (No 2) said, at N53:
“It must be stressed that the test is the reasonableness of the decision, not whether the Tribunal would have decided that it was ‘the correct or preferable decision’. The very fact that access has eventually been given to the documents to which the application related raises at least a possibility that the decision might not have been regarded by the Tribunal as the correct or preferable one. But implicit in para (d) of s 66(2) is recognition by parliament that that is not necessarily inconsistent with the decision having been reasonable.”
59. Also, it needs to be said that the later release of documents does not automatically lead to the conclusion that an exemption was not properly claimed in the first place (see Cosco Holdings Pty Ltd and Department of Treasury (1999) 54 ALD 466 at 481).
60. Mr Brighton-Stangstins submitted that when considering the reasonableness of the decision, the Tribunal should have regard to the sufficiency of the Statement of Reasons provided under s 26 of the FOI Act. Although Mr Brighton-Stangstins did not quote any authority for the proposition, and I have some doubt about its accuracy, I do accept that the decision-maker’s statement and findings on any material questions of fact will assist the Tribunal in determining whether the decision made on review was reasonable.
61. Following an internal review on 4 December 2006, only documents 3, 5, 7, 8, 9 and 10 were the subject of exemption claims.
Document 3 and 5
62. As Mr Brighton-Stangstins explained, documents 3 and 5 are the enquiry to, and response from, Westpac with respect to fees charged within their foreign currency Visa and MasterCard transactions. Westpac’s response (document 5) had attached a number of already publicly disclosed documents referring to its fees and charges generally. Although Mr Brighton-Stangstins submitted that the ACCC initially granted access to documents 3 and 5 including the attachments to document 5, and upon internal review reversed its decision following further objection by Westpac, that is not correct. The ACCC’s FOI delegate, in her letter of 10 October 2006 stated that documents 3 and 5 are listed as subject to third party consultation. The FOI delegate explained that no decision would be made on those documents until such time as there was an agreement between the ACCC and the third party relating to their release or refusal. The FOI delegate also explained there was a 30 day period for the consultation.
63. The ACCC wrote to Westpac on 4 October 2006 asking if it had any objections to the release of documents 3 and 5. Westpac’s solicitors responded on 4 October 2006 stating objections to disclosure. On 9 October 2006 the ACCC’s FOI delegate advised Westpac’s solicitors that it proposed to grant part access to the documents, indicating the parts which it intended to redact. Westpac’s solicitors, in a letter dated 15 November 2006, said that Westpac objected to the disclosure of the documents and it sought an internal review of the decision. Westpac’s solicitors also stated that Westpac would not have provided the documents voluntarily had it known that they might be disclosed to a third party. It pointed out that the ACCC decision to grant part access to those documents directly and negatively impacted on Westpac’s future supply of information to the ACCC. The ACCC notified Mr Brighton-Stangstins of Westpac’s request for an internal review. After Westpac withdrew its objection to the disclosure of documents 3 and 5, essentially because they were provided to Mr Brighton-Stangstins in the discovery process in an action commenced in VCAT, the ACCC agreed to release those documents.
64. In my view, it was proper for the ACCC to take account of the objections made by Westpac to the production of document 5. I also do not consider that it was unreasonable of the ACCC to claim the exemption under s 40(1)(d) of the FOI Act in respect of document 3. Whether that claim would have ultimately been sustained on a hearing for the release of that document is not to the point. That is not a question which I am required to answer. I agree with the ACCC submissions that the objections raised by Westpac were not irrational or absurd. In my view, the ACCC dealt with these two documents in an appropriate way, having due regard to Westpac’s concerns about disclosure. That is so regardless of the fact that some of the attachments to document 5 were documents which were already in the public arena. Disclosure of the attachments by themselves would not have been of any assistance to Mr Brighton-Stangstins.
Documents 8 and 9
65. Documents 8 and 9 were refused on the grounds that they were within the exemption in s 36 of the FOI Act, in that they were internal working documents. Document 8 was described as the enforcing committee meeting minutes and document 9 appears to be an internal email regarding those minutes. They clearly fall within the description of internal working documents. Although Mr Brighton‑Stangstins submitted that release of the documents could not be contrary to the public interest, that evidences Mr Brighton-Stangstins’ misunderstanding of what is required under s 66(2)(d) of the FOI Act. The purpose of this enquiry is merely to determine whether the decision to exempt those documents was reasonable. On their face, they are internal working documents. The explanation given by the ARO for the exemption claimed is clearly satisfactory and reasonable. While I accept that the decision may be open to criticism and argument, it cannot be said that the decision by the ACCC to seek exemption under s 36 for those documents was irrational or absurd. It clearly was not.
66. After further reviewing documents 8 and 9, the ACCC considered that those documents could be released, albeit in a redacted form. Those redacted documents were then provided to Mr Brighton-Stangstins. After documents 8 and 9 were released to Mr Brighton-Stangstins in their redacted form, he agreed that the redacted parts of those documents were no longer to be the subject of his application. In other words, he accepted that the redacted parts of those documents were not relevant to his application.
Documents 7 and 10
67. Following internal review, the ACCC maintained a number of exemptions in respect of document 7 and 10. The exemptions claimed were under sections 36, 40, 43 and 45 of the FOI Act. Document 7 was a paper prepared by the ACCC for submission to the Enforcement Committee. Document 10 was an internal file note dealing with whether banks were disclosing the MCCR; whether that constituted a breach of any legislation and whether the fee charged by banks should be called a foreign currency conversion fee. The submission to the Enforcement Committee set out the options available to the ACCC as well as recommendations.
68. Although Mr Brighton-Stangstins was critical of the way in which the ACCC dealt with the multiple exemptions claimed for each of the documents, suggesting that each document or attachment to a document should be treated separately and the exemptions applied to each, that seems to me to go more to the form of the Statement of Reasons rather than its substance. An examination of the redacted copies of documents 7 and 10 does not disclose that the exemptions claimed were unreasonable. Again, whether they would have been upheld at a hearing is a different question and not one which I am required to address.
69. On 29 November 2007 the ACCC’s solicitors informed Maurice Blackburn that the ACCC had decided it would no longer maintain the exemption claims under s 36 and s 40 in respect of documents 7 and 10. The ACCC nevertheless continued to claim exemption on the grounds of legal professional privilege (s 42), an exemption claim which was later introduced. While Mr Brighton-Stangstins was critical of the fact that the legal professional privilege claim was not made until after his application had been made under the FOI Act, and while that may be a valid criticism of the way in which these documents were approached initially, it does not indicate that the approach was unreasonable. Mr Brighton-Stangstins was also critical of the way in which the internal review officer’s report was structured, indicating that, in his opinion, the decision-maker had not read the documents. Whether that is valid criticism is again, not to the point. It does not change the fact that the decision to claim the exemptions in respect of documents 7 and 10 are, on their face, supported by the nature and content of those documents. Although it is correct to say that all of the exemptions in relation to documents 7 and 10 were withdrawn prior to final settlement, that seems to have been on the basis that the exemption claimed under s 42 in respect of each of those documents be maintained as well as the redaction of irrelevant parts under s 22. The copies of documents 7 and 10 released to Mr Brighton-Stangstins are redacted to take account of the s 42 and s 22 exemptions. The parties agreed to the release of documents 7 and 10 on that basis.
70. In my view, it cannot be said that the decision taken by the ACCC on internal review was unreasonable.
OTHER RELEVANT CONSIDERATIONS
Delay in granting access
71. I accept that this is a relevant consideration. Where there has been delay by the agency which could be described as unreasonable (see Re Paterson No 2 and Re Lianos) a recommendation may be made regarding the payment of costs of an applicant.
72. According to Mr Brighton-Stangstins, he was subjected to unnecessary costs because the ACCC claimed exemptions which it did not maintain subsequently. Mr Brighton-Stangstins set out a table indicating the exemptions initially claimed and the fact that those exemptions were not relied on when the documents were released. However, that submission ignores the basis upon which those documents were released. For example, I have already explained the circumstances which gave rise to the release of documents 3 and 5. As for documents 8 and 9, the documents released are substantially redacted and the release occurred only when Mr Brighton‑Stangstins agreed that the redactions would not be pursued if the matter went to hearing. As for the exemptions claimed for documents 7 and 10, while it is true to say that those exemptions were not maintained through to the release of the documents, the documents are heavily redacted on the basis of new exemptions claimed under s 42 and s 22 of the FOI Act. Of course, the explanation may be that the s 42 and s 22 exemptions maintained at the time of release may have taken account of material for which the other exemptions were claimed. I do not of course know that but, where multiple exemptions are claimed in respect of one document, it is not unusual to find those exemptions overlap the material.
73. The ACCC’s solicitors submitted that Mr Brighton-Stangstins refused to have his application dealt with by the alternative dispute resolution processes provided for under the AAT Act. According to the ACCC, that would have reduced Mr Brighton‑Stangstins’ costs, as it may have resulted in resolution at a far earlier stage. Whether or not that would have been the case is purely speculative. In my view, it is not a matter which I should consider regarding Mr Brighton-Stangstins’ claim regarding delay.
74. In my opinion, there was no undue delay by the ACCC in providing the requested documents to Mr Brighton-Stangstins.
Denial of internal review – Document 3
75. As I understand this complaint by Mr Brighton-Stangstins, the primary decision-maker decided to grant access to documents 3 and 5 but this was altered by the ARO on internal review because an application had been received from Westpac requesting an internal review of the original decision to grant access to those documents. In a letter dated 2 February 2007 the ACCC stated that it had advised Mr Brighton-Stangstins that the preliminary view of the primary reviewing officer was that document 3 should be released in full. The ACCC noted that the FOI Act did not provide for an applicant to seek an internal review in relation to a decision to grant access to a document. That seems to me to be plainly correct. The ACCC then went on to tell Mr Brighton-Stangstins that the preliminary decision to grant access in full to document 3 was a courtesy indicating the internal reviewing officer’s thinking. Nevertheless, according to the ACCC, the ARO, when conducting the internal review, took into account the submissions made by Mr Brighton-Stangstins regarding document 5 and documents 7 to 10 when considering whether to release document 3. Although I am of the view that it is inappropriate to advise applicants about any preliminary views a reviewing officer may have about a particular document, for the reason that it may raise in an applicant an expectation that the document will be released and therefore no submissions are made on internal review, I do not regard this event as one which caused any significant detrimental costs effect to Mr Brighton-Stangstins.
Introduction of legal professional privilege
76. Mr Brighton-Stangstins submitted that the introduction of the s 42 exemption in respect of documents 7 and 10 after he had filed his application with the Tribunal required him to incur unnecessary costs. Although Mr Brighton-Stangstins submitted that the exemption was unreasonably claimed, he did not expand that statement and set out the reasons why he claimed the exemption was unreasonable. In any event, Mr Brighton-Stangstins eventually consented to documents 7 and 10 being provided to him in a redacted form which took account of that exemption. Because Mr Brighton-Stangstins chose not to dispute the claimed exemption, it seems to me that he cannot now properly pursue a claim that the exemption was unreasonable. Although Mr Brighton-Stangstins also submitted that the addition of the exemption under s 42 was a deliberate attempt to amend the decision without appropriate notification or his consent, I cannot agree. The decision on review was that access to documents 7 and 10 be refused. That did not change as a result of the legal professional privilege claim. Although I do accept that the addition of an exemption claim in relation to a document in the course of the proceeding will necessarily, if that exemption is to be contested, cause an increase in costs, there is no evidence before me as to the extent of any increase in costs occasioned by the addition of the exemption sought under s 42.
77. Although Mr Brighton-Stangstins said that he continued to maintain the objection to the s 42 exemption, he nevertheless agreed to the release of documents 7 and 10 in part. Mr Brighton-Stangstins pointed to a letter from Maurice Blackburn dated 5 December 2007 to AGS in which it is said that the enclosed signed copy of the Terms of Agreement were without prejudice to Mr Brighton-Stangstins’ contentions that the ACCC could not make the claim for legal professional privilege; and without prejudice to his rights to contend that the document should be released in full. Be that as it may, it seems that subsequent events have overtaken his stance at that time. On the day prior to the date set down for hearing, the Tribunal was advised by the ACCC’s solicitors that Mr Brighton-Stangstins’ solicitor had informed them that the applicant no longer wished to pursue his application. AGS sought a vacation of the hearing date. On that day, the Tribunal was provided with a copy of the Terms of Agreement as to decision. The parties agreed that the application be dismissed and that any application for costs pursuant to s 66 of the FOI Act be dealt with on the papers. That document was signed by Maurice Blackburn and AGS. Acting on that agreement, the Tribunal made Consent Orders pursuant to s 42C(2) of the AAT Act.
78. Having accepted documents 7 and 10, and having then consented to his application being dismissed, it does not seem to me to be reasonable for Mr Brighton‑Stangstins to now be seeking costs by reason of the late introduction of the s 42 exemption.
Request for confidentiality orders
79. Mr Brighton-Stangstins submitted that ACCC’s request for Confidentiality Orders under s 35 of the AAT Act were unreasonable and caused unnecessary costs being incurred. The application was heard by Deputy President Forgie who was clearly of the view that it was appropriate to make orders under s 35 of the AAT Act. Although the ACCC concedes that some material was released and not made the subject of the Confidentiality Order, the learned Deputy President nevertheless granted a Confidentiality Order over a substantial portion of documents. Therefore, it cannot be said that the application for Orders under s 35 of the AAT Act was unreasonable.
Sufficiency of statement of reasons
80. Mr Brighton-Stangstins submitted that the Statement of Reasons provided under s 26 of the FOI Act was inadequate and that it placed him at a disadvantage, requiring him to file for a review of the decision and incur unnecessary costs. Although Mr Brighton-Stangstins set out in detail the relevant parts of the Freedom of Information Guidelines prepared by AGS, it should be remembered that as is stated in the guidelines, they are a reference tool for decision-makers and others involved in making and notifying FOI decisions. They do not necessarily inform this Tribunal whether there has been compliance with s 26 of the FOI Act. Nor is it permissible for the Tribunal to use those guidelines when construing the FOI Act. Section 26 of the FOI Act requires the decision-maker to give to the applicant a notice in writing of the decision in which it must state the findings on any material questions of fact, referring to the material on which those findings were based, and state the reasons for the decision. Therefore, whether the decision-maker followed religiously the AGS guidelines in drafting the findings on material questions of fact is simply not relevant for the purposes of this examination. I must determine whether the decision-maker complied with s 26 of the FOI Act.
81. In my view, the reasons given by the ARO adequately address the requirements of s 26. While the reasons certainly do not cover all of the matters referred to in the guidelines, they nevertheless provide the recipient with a reasonable understanding of the nature of the documents so that the recipient could properly decide whether or not to mount a challenge. Although it may have been preferable in this case to simply set out each document under which the ARO dealt with each exemption relating to that document, the fact that the findings have been set out under the particular exemption sections relied upon does not make the document any less comprehensible. One could always argue that there is insufficient particularity given about the nature of the document. However, in my view, it should not be expected to be in the form of pleadings fully particularised. Findings on material questions of fact are set out by reference to the material, in a general sense, contained in each document. If the approach I suggested had been adopted, the writer might have perhaps better established the nature of the document; although of course, the broad description is set out in the schedule.
82. Overall, I am satisfied that there has been substantial compliance with s 26 of the FOI Act and that the reasons for claiming the exemptions are sufficiently well described so as to permit the reader to decide whether to further pursue the application.
CONCLUSION
83. Although it was conceded that Mr Brighton-Stangstins substantially succeeded in his application for review based on the results he achieved from his application, other than the fact that there was no evidence of a commercial benefit to Mr Brighton-Stangstins as a consequence of his application, the other mandatory factors for consideration set out under s 66(2) of the FOI Act do not favour that a recommendation be made. Further, having considered a number of other matters which Mr Brighton‑Stangstins claims are relevant, I am nevertheless left in the same position. There is nothing amongst those other relevant considerations which would persuade me that this FOI application has been dealt with in anything but a proper manner by the ACCC, having due regard to information provided by a third party and the right of access granted by FOI Act. Therefore, I cannot recommend to the Attorney-General that the costs of Mr Brighton-Stangstins in relation to this application be paid by the Commonwealth.
I certify that the eighty-three [83] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, Member
(sgd) Mara Putnis
Clerk
Date of Hearing Hearing on the papers
Date of Decision 29 August 2008
Solicitor for the Applicant Self‑represented
Solicitor for the Respondent Australian Government Solicitor
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