Collins v Indigenous Business Australia

[2008] AATA 505

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 505

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1091

GENERAL ADMINISTRATIVE DIVISION		)
Re		SHIRLEY COLLINS

Applicant

And INDIGENOUS BUSINESS AUSTRLIA

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date18 June 2008

PlaceBrisbane

Decision The Tribunal declines to recommend that costs be awarded to the applicant in respect of her application.

........................[Sgd]......................

SENIOR MEMBER

CATCHWORDS

FREEDOM OF INFORMATION – Costs – Whether successful or substantially successful in review application – Applicant substantially successful – Whether discretion to recommend costs be paid should be exercised – Tribunal found no benefit to general public – Tribunal found no commercial benefit to applicant – Tribunal found decision reasonably made – Tribunal considered no additional matters relevant to exercise of discretion – Discretion should not be exercised – Application to recommend costs declined

Freedom of Information Act 1982 (Cth), ss 3, 66(2)

Re Lianos and Secretary, Department of Social Security (No 2) [1985] AATA 281; (1985) 9 ALD 43

Re Rae and Department of Arts, Heritage and Environment [1985] AATA 112; (1985) 7 ALD 449

Re Toomer and Department of Primary Industries and Energy [1991] AATA 31; (1991) 22 ALD 164

Cashman & Partners v Secretary, Department of Human Services and Health [1995] FCA 1730; (1995) 61 FCR 301

Lobo and Minister for Immigration and Citizenship [2007] AATA 1038; (2007) 47 AAR 22

Huttner and Department of Immigration and Ethnic Affairs [1995] AATA 357

Searle Australia Pty Ltd v Public Interest Advocacy Centre [1992] FCA 241; (1992) 36 FCR 111

REASONS FOR DECISION

18 June 2008 Senior Member Bernard J McCabe         

1.      Mrs Shirley Collins asked the Tribunal to review a decision of Indigenous Business Australia, the respondent, to refuse to provide access documents that the applicant sought under the Freedom of Information Act 1982 (“the Act”). The dispute was ultimately resolved when the respondent agreed to release most of the documents to which access had been denied. That agreement was reflected in the decision of the Tribunal following a brief hearing on 22 November 2007.

2. The applicant has asked the Tribunal to make a recommendation with respect to costs. The Tribunal does not have a general power to award costs but there are some statutes that permit a successful party before the Tribunal to recover costs, or at least obtain a recommendation that costs be paid. That is the case here. Section 66 of the Act says the Tribunal may recommend to the Attorney-General that costs be awarded where the applicant is successful, or substantially successful, in his or her application for review. The Tribunal is not obliged to make such a recommendation merely because the applicant has been successful. The power to make a recommendation is discretionary. The discretion can only be exercised after the Tribunal has had regard to the matters referred to in s 66(2) although other factors may also be relevant.

The threshold issue: was the applicant substantially successful in her claim?

3.      The discretion to make a recommendation is not enlivened unless the applicant is successful or substantially successful in her application before the Tribunal. The respondent’s submissions delivered under cover of a letter dated 21 January 2008 concede the applicant was substantially successful, although it points out that is because the respondent decided to waive legal professional privilege it was entitled to assert with respect to a number of the documents in question. The applicant’s submissions of 29 January 2008 note the privilege claim was only withdrawn in the shadow of the hearing nearly some four years after the proceedings began.

4.      The applicant’s submissions suggest she obtained access to 99% of the documents in dispute. The Tribunal will certainly consider the quantity of documents that became available when determining whether an applicant has enjoyed substantial success, but the real test is whether disclosure of the documents has led to increased disclosure of information that was not previously available: see Re Lianos and Secretary, Department of Social Security (No 2) [1985] AATA 281; (1985) 9 ALD 43 at 46 per DP Hall.

5.      The respondent does not question the applicant’s assessment of the value of the documents in question. I have no reason to question that assessment. I think the respondent’s concession was appropriate, and I accept it.

The applicant’s costs

6.      Mrs Collins was represented throughout the proceedings by Mr Percival, a chartered accountant. Mr Percival provided a statement of account that identified $6349 in costs incurred by the applicant. The account was attached to his written submissions dated 5 December 2007. The details of the account were summarised by Mr Percival in his written submissions, which suggested the costs were explained by:

·Travel costs associated with the hearings, together with telephone and facsimile costs;

·The time expended by Mr Percival and his staff in researching the basis for the application.

7.      In one sense, the details of the claim are irrelevant for present purposes. Where the Tribunal decides to make a recommendation with respect to costs, it would not ordinarily refer to a specific sum. The respondent pointed out it is a matter for the Attorney-General to determine whether costs are ultimately paid, and in what amount. The Tribunal does not play a role in determining the quantum of any amount that may be awarded: see Re Rae and Department of Arts, Heritage and Environment [1985] AATA 112; (1985) 7 ALD 449 at 454 per DP Todd.

The matters that must be considered under s 66(2)

8. I shall address each of the considerations referred to in s 66(2).

(a) Whether payment of the costs or any part of the costs would cause financial hardship to the applicant

9.      The Tribunal would ordinarily expect to see detailed evidence describing the applicant’s financial circumstances. The respondent pointed out in its written submissions that the applicant has not provided any evidence beyond a series of assertions that suggest she is in straitened financial circumstances. The respondent says it is unclear whether Mrs Collins will be unable to meet her own costs out of her own resources. The respondent adds that some of those costs are in any event unusual: it suggests that costs would not ordinarily be awarded in respect of a representative who was not legally qualified: cf Re Toomer and Department of Primary Industries and Energy [1991] AATA 31; (1991) 22 ALD 164. While it might be unusual to make such a recommendation, I do not accept the Tribunal is unable to make it if the circumstances suggest there was a good reason for utilising the skills of a particular representative who did not possess legal qualifications. In this case, Mr Percival is a chartered accountant. The underlying dispute between Mrs Collins and the respondent appears to have a commercial dimension, which might make Mr Percival’s role important. However, it must also be acknowledged that Mr Percival had to expend time acquainting himself with information about the law and the FOI process that a qualified lawyer would be able to assimilate with greater ease and less expense.

10.     I am unable to be satisfied at this point that the applicant has experienced, or will experience, any financial hardship. Mr Percival’s written submissions of 29 January 2008 refer to the applicant losing her house and closing her business. These things might provide a basis for a claim of financial hardship, but I have not been provided with additional evidence on the issue.

(b)  Whether the decision of the Tribunal on review will be of benefit to the general public

11.     The respondent correctly acknowledges that disclosure of information to the applicant may yield a private benefit, in the sense that she may be able to obtain answers to questions she has been asking. But the concept of public benefit is wider than that.

12. The Act proceeds on the assumption that the public interest is served by providing access to information that is not exempt from disclosure as a result of a competing public interest: see s 3. I suppose the public interest is advanced in a general sense every time someone is given access to documents that are not exempt in the sense that his or her right to obtain access to the information has been vindicated. The courts and the Tribunal have tended to take a more hard-nosed view, requiring that the public (either the public at large, or some substantial part of it) actually receive some benefit – a benefit that accrues as a result of the information being made available: see, for example, Cashman & Partners v Secretary, Department of Human Services and Health [1995] FCA 1730; (1995) 61 FCR 301 at 307 per Beazley J.

13.     Mr Percival’s submissions dated 29 January 2008 argued that the public would certainly be interested that “a government agency is prepared to go to any length and at all cost to the taxpayer to NOT apply procedural correctness”. But even if I accepted the agency was tardy or obstructive in its handling of this case, its supposedly belated decision to release the disputed documents does not tell me anything about the public benefit which accrues from the release of the information. Mr Percival referred to the Tribunal’s decision in Re Lobo and Minister for Immigration and Citizenship [2007] AATA 1038; (2007) 47 AAR 22, but I do not see how that case assists his client. I note that Mr Fice, the presiding member in Lobo, referred to Re Lianos and Department of Social Security(No 2) [1985] AATA 281; (1985) 9 ALD 43 in the course of his reasons. In Lianos, DP Hall emphasised (at 48) that one must have regard to the positive impact of the released information when assessing public benefit. The difficulties attending the process by which that information is released are not relevant on that analysis.

14.     I am not satisfied the applicant has demonstrated a public benefit flowing from the release of the information.

(c)  Whether the decision of the Tribunal on review will be of commercial benefit to the person making application to the Tribunal

15.      The cases suggest the Tribunal may be less inclined to exercise the discretion to make a recommendation that costs be paid where the release of the information in question results in a commercial benefit to the applicant: see, for example, Huttner and Department of Immigration and Ethnic Affairs [1995] AATA 357 at [17] per DP Blow; see also Re Toomer and Department of Primary Industries and Energy [1991] AATA 31; (1991) 22 ALD 164 at 181 per SM Dwyer. The respondent conceded it was unaware of any commercial benefit accruing to the applicant as a result of the release of the documents. Mr Percival’s submissions did not clearly identify any benefit either. I accept there is no commercial benefit accruing to the applicant in the circumstances.

(d)  The reasonableness of the decision reviewed by the Tribunal

16.     The word ‘reasonableness’ is used in many different ways in the law. Mrs Collins plainly regards the respondent’s behaviour as unreasonable in light of the delay that has attended this process. So too does Mr Percival, given other shortcomings he referred to in his submissions – such as lost files and other behaviour that he believes is evidence that the respondent has not behaved as a model litigant.

17. The respondent points out that s 66(2)(d) refers to the reasonableness of the decision, rather than the reasonableness of the decision-maker. I was referred to a number of authorities which suggested the decision to rely on an exemption available under the Act was reasonable if it appeared there was a rational basis for that decision. Evaluating ‘reasonableness’ requires the Tribunal to consider whether what was decided was the product of a reasoned process: see, for example, Searle Australia Pty Ltd v Public Interest Advocacy Centre [1992] FCA 241; (1992) 92 FCR 111 at 125 per Davies, Wilcox and Einfeld JJ. The Tribunal does not focus on whether the particular decision was wise, good or responsible when considering the operation of s 66(2)(d).

18.     The applicant’s criticisms of the agency’s conduct may or may not be well-founded. I do not ultimately need to address those larger questions here if I am satisfied there was a rational basis for deciding not to release the documents in question. The respondent says legal professional privilege attached to the documents in question. It adds that the claim of privilege was never abandoned – it was merely waived to permit the documents to be released. Without expressing a concluded view that the claim of privilege could have been maintained, a perusal of the descriptions applied to the documents in the schedules supplied by the respondent suggests there is no reason to doubt that the claim could rationally be made.

Exercising the discretion

19. I have already pointed out s 66(2) does not contain an exhaustive statement of matters that may be taken into consideration when deciding whether to exercise the discretion. Other matters might also be relevant. The tenor of the applicant’s submissions suggests I should give some weight to the behaviour, or misbehaviour, of the respondent. Mr Percival made his frustration at the agency’s behaviour plain in his submissions. He makes a number of general allegations. The respondent, for its part, acknowledges there may have been some procedural missteps but it does not concede there has been any misconduct.

20.     While I acknowledge there is clearly a poor relationship between the applicant and the respondent, it is difficult for me to identify the source of the problem. Without the benefit of a full hearing, I am unable to form a clear view of whether the respondent or any of its officers has engaged in misconduct. It seems to me that convening such a hearing or embarking on some other process of inquiry will only serve to run up the costs that both parties have occurred without necessarily shedding any light on the underlying issues. That would be undesirable, and I decline to do so. In the absence of clear-cut evidence of misbehaviour, I do not think I should take the applicant’s allegations into account.

21. I am not aware of any other matters that are relevant to the exercise of my discretion under s 66. When I have regard to the matters set out in s 66(2), I am not persuaded that I should recommend that costs should be paid to the applicant. While I considered providing her with the opportunity to provide more information about her financial circumstances, I do not think evidence of financial difficulty would have caused me to take a different view of the matter in light of the conclusions I reached in relation to the matters referred to in s 66(2)(b) and (d) in particular. Those two considerations tend firmly against the exercise of the discretion.

Conclusion

22. The Tribunal declines to recommend that the applicant receive costs in respect of her application pursuant to s 66 of the Freedom of Information Act 1982.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe

Signed: ..................................[Sgd]...................................................
  Michael Buckingham, Associate

Date of Hearing  22 November 2007
Date of Decision  18 June 2008
Solicitor for the applicant          Unrepresented, assisted by Mr B Percival

Solicitors for the respondent     Australian Government Solicitor