Cashman & Partners v Secretary, Department of Human Services and Health
[1995] FCA 1127
•12 DECEMBER 1995
CATCHWORDS
ADMINISTRATIVE LAW - Appeals - Administrative Appeals Tribunal - Discretion to recommend that Attorney-General pays costs.
FOI ACT - Outline of FOI scheme - delay - deemed decisions.
FOI ACT - Appeals - AAT - Discretion to recommend that Attorney-General pay costs - relevant considerations.
FOI ACT - Appeals - AAT - Discretion to recommend Attorney -General pay costs - meaning of "benefit to the public".
FOI ACT - Appeals - AAT - Consideration of FOI request - delay by decision maker - deemed decision - subsequent decisions to release documents - AAT power to consider both decisions - relevance for costs application.
FOI ACT - Appeals - AAT - Discretion to recommend AG pay costs - original decision a 'deemed decision' - subsequent decision to release documents - reasonableness of original and subsequent decisions - relevance of delay for costs application.
FOI ACT - Appeals - AAT - Consideration of delay by decision maker - option of complaint to Ombudsman - AAT consideration not precluded or restricted by existence of Ombudsman.
FOI ACT - Appeal to AAT - discretion to recommend AG pay costs - nature of costs - self representing applicant - where applicant is a solicitor.
Administrative Appeals Tribunal Act 1975 (Cth)
Freedom of Information Act 1982 (Cth)
Supreme Court Act 1970 (NSW)
Ombudsman Act (1976) (Cth)
Re Hounslow v Department of Immigration and Ethnic Affairs (1985) 7 ALN N362
Re Lianos v The Secretary, Department of Social Security (1985) 9 ALD 43
Re Paterson v Department of Arts, Heritage and Environment (1985) 8 ALR 227
Cachia v Hanes & Anor (1994) 179 CLR 403
London Scottish Benefit Society v Chorley (1884) 13 QBD 872
Guss v Veenhuizen [No. 2] (1976) 136 CLR 47
Cazalas v US Department of Justice (1983) 709 F2d 1051
Re Lianos and Secretary, Department of Social Security (No. 2) (1985) 9 ALD 43
Re Rae and Department of Arts, Heritage and Environment (1985) 7 ALD 449
Re Chan and Department of Immigration and Ethnic Affairs No. 2 (1985) 8 ALN 52
Secretary, Department of Foreign Affairs and Trade v Boswell [No. 2] (1992) 39 FCR 288
CASHMAN & PARTNERS v SECRETARY DEPARTMENT OF HUMAN SERVICES AND HEALTH
No. G351 of 1994
Beazley J
12 December 1995
Sydney
IN THE FEDERAL COURT OF AUSTRALIA )
) No. G351 of 1994
NEW SOUTH WALES DISTRICT REGISTRY )
)
GENERAL DIVISION )
CASHMAN & PARTNERS
ApplicantSECRETARY DEPARTMENT OF HUMAN SERVICES AND HEALTH
Respondent
CORAM:BEAZLEY J
PLACE: SYDNEY
DATE: 12 December 1995
SHORT MINUTES OF ORDER
The Court orders that:
The appeal be allowed.
The matter be remitted to the Tribunal for determination in accordance with law.
The respondent pay the applicant's costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
) No. G351 of 1994
NEW SOUTH WALES DISTRICT REGISTRY )
)
GENERAL DIVISION )
CASHMAN & PARTNERS
Applicant
SECRETARY DEPARTMENT OF HUMAN SERVICES AND HEALTH
Respondent
CORAM:BEAZLEY J
PLACE: SYDNEY
DATE: 12 December 1995
REASONS FOR JUDGMENT
BEAZLEY J: This is an appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) dated 18 May 1994 in which the Tribunal declined to make a recommendation to the Attorney-General, pursuant to s 66 of the Freedom of Information Act 1982 (Cth) (the FOI Act), that the costs of the applicant in relation to proceedings brought by them in the Tribunal against the respondent, be paid by the Commonwealth. The appeal is on a question of law only: s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act)
Background Facts
On 22 May 1992, the applicant made a request pursuant to s 15 of the FOI Act (the FOI request) for access to:
"[D]ocuments in the possession of the Federal Department of Health and/or other agencies,
committees and sub-departments under the jurisdiction of the Department of Health relating to Bjork-Shiley Prosthetic Convexo-Concave Heart Valves."
The applicant requested that the matter be treated with urgency, as a class action, which purported to bind Australians implanted with the heart valves, was to be heard in the United States on 5 June 1992. The applicant advised the respondent that they had informed Shiley Incorporated and Pfizer Inc, the defendants in the class action proceedings, of the FOI request. In July 1992, there was a revised proposed settlement of the class action.
The Bjork-Shiley Heart Valve device, which was owned by Shiley Incorporated, was imported into Australia and distributed by Bard Australia Pty Limited from about 1981 until it was recalled in 1983. It appears the valves were recalled due to emerging evidence of strut failure, resulting in fatalities. By December 1990, a United States Food and Drug Administration (FDA) task force had reported that the Shiley Convexo-Concave Heart Valve was defective from the time of its approval by the FDA. The task force also reported that Shiley Incorporated had engaged in a continuing scheme to interrupt, deflect and misdirect the FDA's regulation of the heart valve. The task force's investigations had primarily been directed to the 60 degree c/c valve. It reported, however, that it appeared that similar problems would apply to the 70 degree c/c valve.
Before dealing with the application to the Tribunal, it is
convenient to deal with the relevant scheme of the FOI Act and the AAT Act.
The FOI Act
The FOI Act gives to every person a legally enforceable right to obtain access to a document of an agency other than an exempt document: s 11. An agency is defined to mean, inter alia, a Department of the Australian Public Service: s 4.
A person who wishes to obtain access to a document of an agency may request access to the document: subs 15(1). The requirements of any such request are specified in subs 15(2). As soon as practicable, but not later than 14 days after the day on which the request is received, the agency must take reasonable steps to see that the applicant is notified that the request has been received: subs 15(5)(a). As soon as practicable, but not later than 30 days after the day on which the request is received, the agency must take all reasonable steps to enable the applicant to be notified of a decision on the request: subs 15(5)(b). If the agency determines in writing that the requirements of ss 26A, 27 or 27A make it appropriate to extend the period referred to in paragraph (5)(b), the period is taken to be extended by a further period of 30 days: subs 15(6)(a). The agency must, as soon as practicable, inform the applicant that the period has been so extended: subs 15(6)(b).
Documents may be exempt from production under the Act. The categories of exempt documents include: documents affecting relations with States: s 33A; documents affecting personal privacy: s 41; documents protected by legal professional privilege: s 42; and documents relating to business affairs: s 43.
Sections 26A, 27 and 27A specify the procedures which an agency must follow in respect of requests for documents which may be exempt documents under ss 33A, 43 and 41, respectively.
A person may make application to the Tribunal for review of certain decisions made under the FOI Act, including a decision to refuse access to documents: s55. Where no decision has been made in accordance with the time prescribed by the Act, there is deemed to be a decision made refusing access to the documents sought: s 56 (1). The Tribunal may treat proceedings for a review of a decision as extending to a review of a decision (save for certain exceptions not relevant here) made after the application to the Tribunal has been made: s 56(5) of the FOI Act. An applicant who is successful or substantially successful on the review may apply to the Tribunal to make a recommendation to the Attorney-General for the payment of the applicant's costs in relation to the proceedings. It is necessary to refer to the provisions of s 66 in full. It provides:
"(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 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), authorise the payment of costs to an applicant."
The AAT Act
Under the AAT Act the Tribunal may review certain decisions made under various Commonwealth statutes. Where an enactment makes provision for the making of an application to the Tribunal for review of a decision, a failure to do the act or
thing described by the enactment within any prescribed period is deemed to be the making of a decision not to do that act or thing (a deemed refusal): s 25(5). As stated above, there is also a deemed refusal provision in the FOI Act: s 56(1).
History of the FOI request and application to the Tribunal
As the respondent had failed to make a decision in accordance within the time prescribed by the FOI Act, there was a deemed refusal to grant access to the documents. On 19 September 1992, the respondent advised the applicant that the documents satisfying the applicant's request had been identified and that access would be granted to the documents, in some cases with deletions, and that exemption under s 43(1) was claimed in respect of certain documents. I will refer to the 19 September decision as the first decision. The applicant was advised of the charge payable under the FOI Act and that the documents would be despatched upon receipt of payment. However, on 18 November 1992, the respondent purported to revoke the first decision on the basis that there had been no consultation with the owner and distributor as required by s 27 of the FOI Act. Subsequently, in an affidavit filed on 10 January 1994, to which I refer in more detail below, it was stated that the decision had been revoked as there had been no consultation under ss 27 and 27A.
On 2 June 1993, the applicants applied to the Tribunal for review of the deemed refusal. On 13 December 1993, the Tribunal directed the respondent to make a decision by 31 December 1993 and to file an affidavit setting out the terms of the decision together with a schedule of documents falling within the FOI request. The respondent did not comply with this direction. On 10 January 1994, the respondent filed an affidavit, identifying approximately 130 documents as falling within the FOI request. The Schedule specified, inter alia, certain documents which would be released with deletions and other documents for which exemption under s 42 was claimed. These documents were alleged to contain legal advice to the Department relating to its potential liability in respect of defective valves. The affidavit also revealed that over the previous 12 months there had been consultation and negotiations with the owner and distributor.
In a further affidavit sworn 26 April 1994, the respondent notified a number of alterations to the decision recorded in the affidavit of 10 January 1994. I will refer to the decisions recorded in these two affidavits as the second decision.
The application for review came before the Tribunal for hearing on 27 April 1994. At that time, the applicant had not been given access to any of the documents identified in the second decision. At the commencement of the hearing, the applicant informed the Tribunal that it would accept the respondent's s 41 claim. The respondent informed the Tribunal that it would make the uncontested documents available within 14 days. The applicant still disputed the respondent's s 42 claim in respect of 8 documents alleged to be exempt on the grounds of legal professional privilege. The Tribunal granted the respondent an opportunity to consider its position in relation to those 8 documents. Later in the day, the respondent informed the Tribunal that the s 42 claim was withdrawn and that it would release the documents to the applicants.
The Tribunal then made the following orders:
By consent, the deemed decision to refuse access to all documents falling within the terms of the request of the applicant dated 22 May 1992 is set aside.
The matter is remitted to the respondent with the direction that the applicants be granted access to all documents identified in the affidavits of Derrick Roy Beech sworn 10 January 1994 and 26 April 1994 as falling within the terms of the request, with deletions where appropriate of the names of medical practitioners and patients in those documents identified as the subject of a claim for exemption under s 41 of the Freedom of Information Act.
Such access is to be given, or copies of the relevant documents are to be made available, to the applicants within 14 days from the date of this decision.
The Tribunal notes that an additional document, being a letter dated 31 July 1984, from the Australian Government Solicitor to the Director-General of Health, has been identified as falling within the terms of the request for access and has been made available to the applicants.
..."
The applicant applied under s 66 of the FOI Act for a
recommendation that its costs in relation to the proceedings be paid by the Commonwealth. On 18 May 1994, the Tribunal declined to make a recommendation under the section. This appeal is against the Tribunal's refusal.
Case on appeal
Counsel for the applicant submitted that the main issue on the appeal was the Tribunal's finding as to the reasonableness of the decision reviewed by the Tribunal. This issue, in turn, raised a preliminary but fundamental question of what was the relevant decision for the purposes of the s 66 application. The Tribunal identified the second decision as the relevant decision. The applicant submitted that the relevant decision was the deemed refusal.
Relevant decision for purposes of s 66 application
In identifying the second decision as the relevant decision, the Tribunal applied an earlier Tribunal decision, Re Hounslow v Department of Immigration and Ethnic Affairs (1985) 7 ALN N362 at N367-8. However, on appeal to the Federal Court from that decision, the respondent Department conceded that the Tribunal had erred in its determination that the relevant decision for a s 66 application was a later decision to grant access to documents, rather than the Department's initial refusal to grant access which had given rise to the application to the Tribunal: see Re Hounslow v Department of Immigration and Ethnic Affairs (unreported, Sweeney J 20 December 1985) where Sweeney J said at 7:
"The Tribunal had become seized of the decisions to refuse access, and it set aside those decisions....To hold that these decisions were not reviewed by the Tribunal would be contrary to the natural and ordinary meaning of the words of the sub-section and produce the effect that a Department which made a proper concession on the hearing of such an application to review could deprive a successful applicant of the benefit of a statutory ground entitling the Tribunal to exercise its discretion on costs in his or her favour."
Counsel for the respondent submitted that Sweeney J's decision in Re Hounslow was distinguishable as it was a case where there had been an initial decision to refuse access to documents. It did not involve a deemed refusal as was the case here. Counsel also submitted that, as the Tribunal's orders made 27 October 1993 related to the second decision, that was the relevant decision for the s 66 application: see generally s 56(5).
I do not consider the ground upon which counsel sought to distinguish Sweeney J's decision in Re Hounslow to be a relevant point of distinction. An applicant is in no different position in the case of a deemed refusal than in the case of a considered refusal. In each case, the applicant is not granted access to documents. In each case, the applicant has the right to apply to the Tribunal for review of the decision although the relevant factors on review will, of course, be different. In my opinion, subject to the respondent's s 56(5) submission, Sweeney J's decision in Re Hounslow applies to this case.
Section 56(5) does not have the effect of substituting one decision for another for the purposes of review. It merely permits the Tribunal to extend its determination to a later decision, although, in a given case, it may be that only the later decision is subject of consideration on the review application. However, that practical consequence does not affect the scope of s 66.
A s 66 application may be made by a person who has made an application for review of a decision under s 55. Such an application may be made, relevantly, in respect of an application for review of a deemed refusal as much as of a considered refusal. A s 66 application may be made where the Tribunal, pursuant to s 56(5), has considered a later decision in the proceedings for review. A recommendation may be made if the applicant is "successful, or substantially successful, in his application for review": s 66(1). Any recommendation made under the section is made in respect of the "costs...in relation to the proceedings" (emphasis added). It is true that s 66(2)(d) refers to "the reasonableness of the decision reviewed by the Tribunal". However, I do not consider that the paragraph limits the otherwise clear words of the section as a whole. Read in context, para (d) refers to the reasonableness of the decision or decisions subject of the application for review. Thus a recommendation which may be made under s 66 is in respect of the application as a whole.
It follows from what I have said that the Tribunal erred in law in determining that the relevant decision for the purposes of the s 66(1) application was the decision of the respondent recorded in the affidavits of 10 January and 26 April 1994.
It was also submitted that the Tribunal erred in law in its approach to the considerations of: (i) benefit to the general public: s 66(2)(b); (ii) and the reasonableness of the decision reviewed: s 66(2)(d).
Benefit to the public
The applicant submitted that the Tribunal erred in its determination that the Tribunal's decision would not be of benefit to the general public, as:
"It is the mere release [of documents] which other bodies have found as sufficient that that was in the public interest, without having to go on to the most invidious task of then, on a costs application, reviewing voluminous documents in order to come up, if you like, with a value judgment."
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 F2d 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.
In Re Paterson and Department of Arts, Heritage and Environment (No. 2) (1985) 8 ALD 227, Deputy President Hall, after holding that an application under s 66 could be made even where an agency had voluntarily released material prior to the matter being heard by the Tribunal, gave consideration to how the Tribunal was to inform itself of the factors relevant to its discretion. He stated at 236:
"Even where the Tribunal has heard and determined the application for review, it is highly improbable that the Tribunal will have any evidence before it on the question of financial hardship. The evidence as to any commercial benefit to the applicant may need amplification. Evidence as to any benefit to the general public from the Tribunal's decision may need to be given. Only the question as to the reasonableness or otherwise of the decision reviewed by the Tribunal may need no further evidence to be adduced. By postulating such considerations as matters relevant to the exercise of the Tribunal's discretion, parliament must have intended that, where an application for costs is made, the Tribunal will inform itself by some appropriate means in order to exercise its discretion properly."
Deputy President Hall expressed a similar concern as that expressed by Deputy President Todd in Re Rae and Department of Arts, Heritage and Environment (1985) 7 ALD 449 and by Deputy President I.R. Thompson in Re Chan and Department of Immigration and Ethnic Affairs No. 2 (1985) 8 ALN 52, that the Tribunal should not become involved in a lengthy and costly hearing to determine whether it should make a recommendation as to costs. Hall D.P. added, however, at 236:
"[I]t is my view that some additional evidence is likely to be required in any case where an applicant seeks such a recommendation."
Indeed, he said (at the same reference) it was:
"an inescapable concomitant of the discretionary power conferred [by section 66] upon the Tribunal."
Deputy President Hall endorsed procedures which had been suggested by Deputy President Thompson in Chan.
In Chan, Deputy President Thompson stated at 53:
"In order to expedite the hearing of the application for a recommendation for payment of costs - and to avoid unnecessary further costs being incurred - the procedure should normally be as follows. The documents to which access has been given, or copies of them, should be lodged with the Tribunal by the respondent, together with an affidavit as to the reasons why access was refused to them. ...The applicant should then lodge with the tribunal an affidavit stating all the facts which are relevant to the question referred to in para (a). If he wishes consideration to be given to whether the general public has derived any benefit from disclosure of the information, he should lodge an affidavit stating the facts alleged to constitute such benefit. If either party intends to raise the question whether the applicant has derived a commercial benefit, that party should lodge an affidavit setting out the relevant facts. Every such affidavit should be lodged, and a copy supplied to the other party, in sufficient time before the hearing of the application for a recommendation as to costs that the other party can prepare and lodge with the Tribunal before the hearing an affidavit in reply if he or it thinks fit to do so. Normally no oral evidence should be given at the hearing. If cross-examination of any person who has sworn an affidavit is necessary, it should be brief."
In this case the Tribunal held that the real decision to make the documents available had been made by the respondent prior to the hearing. It stated that its decision, therefore, was formal and merely embodied the agreement between the parties and provided a suitable legal structure to ensure that the documents were provided within the times set out in the terms of the order. It stated at 8:
"It is hard to see, therefore, how the decision of the Tribunal would be of benefit to the general public".
Had the Tribunal stopped at that point, there would have clearly been an error of law: see Cazalas. An application under s 66 may be made, whether or not an agency has consented to an order or made documents available prior to a hearing. And as I have already said, it is the result of the decision to release which is relevant to the question of the public interest: see Re Paterson (No. 2); Re Chan; Re Lianos.
However, the applicant's submission was that the Tribunal erred in determining that it could not determine whether there was a public interest without looking at the documents. In this regard, the Tribunal stated at 8:
" The decision of the respondent certainly could be of benefit to a segment of the general public (and therefore to the general public as a whole). By making the documents available under the Act they are being made available to the world. They deal
with matters of serious and personal concern to those members of the general public who have been fitted with the therapeutic device, and to the families of those who have died as a result of failure of that device. As we have not seen the documents we are unable to say whether they shed any light on the reasons for the failure of the device.... [The] evidence is not sufficient for us to find positively that the decision of the respondent would be of benefit to the general public."
The Tribunal found that the evidence was not sufficient for it to find positively that the decision of the respondent would be of benefit to the general public. It came to that determination, it said, as it had not seen the documents. If it had stated that it could only determine that question if it saw the documents, there may have been some basis for the applicant's claim that there had been an error of law. However, the Tribunal held that it was not satisfied on the evidence that there would be benefit to the general public by the release of the documents. It is a question for the Tribunal to determine whether it is satisfied on the evidence that a particular matter has been established. Accordingly, there was no error of law in the Tribunal's finding.
Reasonableness of the decision
The applicant submitted that its main challenge to the Tribunal's decision related to its finding in respect of reasonableness. The Tribunal's finding in this regard was (at 10) that the decision:
"can not be regarded as anything other than reasonable. The fact that it has been accepted by the applicants, indicates their agreement with this assessment."
The fundamental problem with this finding of course is that the Tribunal referred to the wrong decision. The Tribunal's reasoning was therefore tainted at the outset. However, it seems that the applicant's real complaint under this ground was as to the manner in which the Tribunal dealt with the issue of delay.
The solicitor for the applicant submitted that the Tribunal erred in its finding that the decision was reasonable as it failed to take into account: (a) the respondent's initial failure to consult as required by s 27 of the FOI Act; (b) the delay in the consultation process; and (c) the content of that consultation, which it was submitted, on the evidence, went well beyond the proper confines of the exemption provisions in which the commercial parties had a legitimate interest.
The Tribunal dealt with delay as part of the general considerations to be taken into account in exercising the discretion conferred by s 66(1). It rejected the contention that the delay was sufficient to warrant a recommendation under the section. It stated (at 11):
"...costs are not payable by the Commonwealth as punishment for a slow agency. Conduct that could only be described as obdurate behaviour, might possibly justify a recommendation. Mere slowness, however, is not sufficiently reprehensible...to warrant a recommendation, particularly when it is considered that most of the delay may have been brought about by the requirements of the Act to consult".
The Tribunal's reasoning on this issue is not entirely consistent. It dealt with the question of delay as part of its consideration of the general discretionary factors to be taken into account under s 66. In doing so, the Tribunal again relied upon the Tribunal decision in Re Hounslow. There, the question of delay was considered as part of the consideration of "reasonableness" under s 66(2)(d), the Tribunal stating at 367:
"In our view the term 'reasonableness of the decision' in sub-section (d) does not mean 'reasonableness of the respondent'. The applicant has her remedies under ss 19, 31 and 56 of the FOI Act where decisions are delayed. It is not necessary to resort to the costs section in order to ensure that statutory timetables and authorised extensions are met. There is an elaborate structure within the Act to ensure that applications are not frustrated by delays. Outside the terms of the Act the applicant may also complain of tardiness to the Ombudsman. It is a matter with which he may properly concern himself. In view of the wording of s 66 we do not consider that we should take it into account in the present application.
...
It is to the final result and its effects that one must look, not to the steps leading up to the arrival of that result. Here we must conclude that the decision (as distinct from the conduct - on which we make no finding) of the respondent was reasonable. The applicant accepted it. If she did not consider that refusal of access to part of one document was not reasonable or supportable by law, she would have pursued her application."
Sweeney J, on appeal, rejected this reasoning, stating at 7:
"In my opinion, the Tribunal erred in law in holding that it should not have regard to the applicant's submissions on delay and procrastination and in so doing deprived the applicant of her right to a finding of fact in relation to a matter relevant to the exercise of its discretion."
Leaving aside the inconsistency in the Tribunal's approach, there are a number of Tribunal decisions which have recognised the relevance of delay as a discretionary factor to take into account under s 66. In Re Paterson (No. 2), Deputy President Hall considered that delay could be a relevant factor to the Tribunal's overall discretion under s 66(1). Likewise, in Re Rae, where access had only been granted shortly before the hearing after a delay of 10 months, Deputy President Todd stated at 225:
"Not to look favourably on an application...would be effectively to countenance procedures likely, or worse, calculated, to induce applicants to abandon their claims....It would not be much to the point to encourage applicants to assert their rights under the FOI Act but then to accept a situation in which costs, reasonably incurred at a very late hour and in accordance with a reasonable belief that the matter would have to go to a hearing, have been thrown away."
In Re Lianos v The Secretary, Department of Social Security (No. 2) (1985) 9 ALD 43, Deputy President Hall held that the question of delay in granting access was a relevant consideration in determining whether a recommendation should be made under s 66. He said at 50:
"The most important factor, however, in the present
case is the lateness of the decision to release those of the remaining 21 documents for which the claims of exemption were ultimately abandoned...
However, the timing of any concession to release the document in whole or in part is very important: cf Re Rae. In the present case, the hearing had actually commenced before the announcement was made...on behalf of the respondent that some of the documents were to be released voluntarily. The applicant, at that stage, was committed to the costs of the hearing and nothing the applicant could have done at that stage would have altered that situation...."
In Re Paterson and Department of Arts, Heritage and Environment (1985) 8 ALD 227, Deputy President Hall held at 237 that:
"[F]or the purposes of s 66 of the FOI Act, conduct on the part of an agency that has caused unreasonable delay and unnecessary costs in obtaining the disclosure of information to which an applicant was entitled under the Act, may properly be taken into account. The contrary view implicit in Hounslow cannot, in my view, be supported."
In this case, the Tribunal referred to the possibility that the delay may have been caused by "the requirements of the Act to consult". However, it did not refer to the initial failure to consult, nor to the extent of the consultation. In my opinion, these were relevant matters to take into account in considering the overall question of delay. The Tribunal erred in law in failing to do so.
I have referred above to the confusion in the Tribunal's consideration of the question of the delay, and as to whether it is a consideration under s 66(2)(d) or s 66 (1). Because of my conclusion in respect of the issue generally, it is not necessary to separately consider whether this confusion led the Tribunal into legal error.
I should also refer to the submission by counsel for the respondent that the applicant's remedy for the respondent's failure to give access to the documents was to make a complaint to the Ombudsman pursuant to s 57 of the FOI Act. Presumably, the provenance for this submission is the Tribunal decision in Re Hounslow. However, as Sweeney J's decision and the other Tribunal decisions to which I have referred make clear, delay may be a relevant factor to take into account when determining an application under s 66. That this is so is apparent from the provisions of the FOI Act. Section 55 provides that application may be made to the AAT for review of specified decisions under the Act. The combined effect of ss 55 and 56(1) of the FOI Act (and also s 25 of the AAT Act) is that an application for review of a deemed decision may be made to the Tribunal. Section 57(1) of the FOI Act provides that a person may complain to the Ombudsman "concerning action taken by an agency...in the exercise of powers or the performance of functions under the [FOI] Act". Section 57(2) of the FOI Act provides that the exercise of powers by the Ombudsman under the Ombudsman Act 1976 (Cth) is "not precluded or restricted because of the rights conferred" by the FOI Act to make applications to the Tribunal. Section 57(3) provides, however, that where a complaint has been made to the Ombudsman under the Ombudsman Act an application to the Tribunal may not be made until the Ombudsman has informed the person of the result of the complaint under s 12 of the Ombudsman Act. Different remedies are provided under the Ombudsman Act to those under the AAT Act. It is not necessary to discuss those differences. It is sufficient to note that the scheme of the FOI Act recognises that an application may be made under either or both the AAT Act and the Ombudsman Act in respect of decisions made under the FOI Act. It follows that this submission is not an answer to the applicant's case.
Award of solicitor's costs
The applicant further submitted that the Tribunal erred in law in holding that, even had it exercised its discretion under s 66 in favour of making a recommendation, it would have restricted such order to the applicant's out-of-pocket expenses and possibly to a loss of salary. The Tribunal stated (at 15 of its Reasons):
"Had the applicants not been legally qualified, the quantum of the costs to which they would have been entitled in civil litigation would have been restricted to out-of-pocket expenses and possibly to loss of salary (as in Boswell). As legal practitioners, the quantum of the costs to which they would have been entitled would have included such items as instructions, attendances, fees for correspondence, preparation of briefs, affidavits and submissions and so on. A lay litigant would not have been entitled to be reimbursed for any of these items. For the purposes of s 66, should legal practitioners be put in a better position than lay applicants for access? We think not."
In coming to this view, the Tribunal rejected the majority
decision in Cachia v Hanes & Anor (1994) 179 CLR 403. In that case, the High Court was concerned with the question of whether a litigant, appearing in person, was entitled to claim compensation for the loss of time spent in the preparation and conduct of his case and for out-of-pocket expenses, namely, travel expenses associated with the preparation and conduct of the case pursuant of the costs provisions of the Supreme Court Rules 1970 (NSW). In their joint judgment, Mason CJ, Brennan, Deane, Dawson and McHugh JJ held at 410:
"To use the Rules to compensate a litigant in person for time lost would cut across their clear intent. Costs, within the meaning of the Rules, are reimbursement for work done or expenses incurred by a practitioner or practitioner's employee. Compensation for the loss of time of a litigant in person cannot be said to constitute costs within the meaning of the Rules."
However, their Honours noted the "anomalous exception" introduced by London Scottish Benefit Society v Chorley (1884) 13 QBD 872 in which it was held that a solicitor who successfully acted for himself in litigation was entitled to the same costs as if he had employed a solicitor, except for items such as obtaining instructions or attendances which were unnecessary because he was his own client. Their Honours noted that this exception had been accepted by the Court in Guss v Veenhuizen [No. 2] (1976) 136 CLR 47. Their Honours stated at 412:
"If the explanations for allowing the costs of a solicitor acting for himself are unconvincing, the logical answer may be to abandon the exception in favour of the general principle rather than the other way around. However, it is not necessary to go so far for the purposes of the present case. It suffices to say that the existence of a limited and questionable exception provides no proper basis for overturning a general principle which has, as we have said, never been doubted and which has been affirmed in recent time."
Their Honours further stated at 414:
"the plain import of the Rules which govern the jurisdiction of the Court to make an order for costs and any subsequent taxation of cost [is that] [t]axation is to take place, not at large, but "on a party and party basis".
Toohey and Gaudron JJ held that the Supreme Court rules were wide enough to encompass costs of a litigant in person beyond usual "out of pocket expenses" such as filing fees and the like. They thought that there were at least two possible approaches to the quantification of such costs. The first was the money lost in taking time off from the litigant's usual employment. The other was to allow such an amount as (at 425):
"the tariff allow[ed] for those activities covered by the tariff upon proof that the activities were actually undertaken".
That approach had been recommended by the Law Reform Commission of British Columbia and had been the approach favoured by Kirby J in the Court of Appeal in Cachia.
Toohey and Gaudron JJ referred to Secretary, Department of Foreign Affairs and Trade v Boswell [No. 2] (1992) 39 FCR 288 as being directly in point. In that case, the Full Court of the Federal Court recognised that authority dictated that a litigant in person, whilst entitled to out-of-pocket expenses, was not entitled for remuneration for work done in the preparation of a case or for appearing in court to present the case. However, it held that "out-of-pocket expenses" included earnings actually lost as a result of the need to prepare the case and to appear in Court.
Cachia and Boswell were both cases relating to a claim for costs by a litigant in person. The decisions in each rested, ultimately, upon the construction of the relevant rules of court. There are no relevant rules of the Tribunal. However, in both cases, the entitlement to costs of a solicitor acting for herself or himself was recognised.
In my opinion, it would be contrary to long established, even if anomalous, principle to limit the costs of a solicitor acting on her or his own behalf to out-of-pocket expenses. Whether a litigant in person would be entitled to a recommendation for the payment of costs under s 66 is not in issue.
I certify that the preceding 25 pages
are a true copy of the Reasons for Judgment
of the Honourable Justice Beazley.
Associate:
Dated: 12 December 1995
APPEARANCES
Counsel for the Appellant: Dr. P.K. Cashman
Solicitors for the Appellant: Messrs Cashman & Partners
Counsel for the Respondent: R. Henderson
Solicitors for the Respondent: Australian Government Solicitor
Dates of hearing: 23 October 1995
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