Coonan and Commissioner of Taxation and Ors
[2006] AATA 329
•6 April 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 329
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/363
GENERAL ADMINISTRATIVE DIVISION ) Re FRANCIS COONAN
(1st Applicant)OLIVE COONAN
(2nd Applicant)
And
COMMISSIONER OF TAXATION
Respondent
And
AUSTRALIAN CAPITAL TERRITORY PLANNING AND LAND AUTHORITY
Joined Party
And
CB RICHARD ELLIS (V) PTY LTD
Joined Party
DECISION
Tribunal Mr S. Webb, Member Date6 April 2006
PlaceCanberra
Decision Having heard the parties, the Tribunal orders:
1. the ACT Planning and Land Authority ("the Authority") and CB Richard Ellis (V) Proprietary Limited ("the Company") to be joined as parties to the proceedings;
2. without disclosing information that is claimed to be exempt, within 14 days the Authority, the Company and the Respondent are to file and serve affidavits and statements of contentions setting out all of the evidence on which they will rely concerning the exemptions claimed;
3. the matter is to be set down for hearing at the earliest convenient date after four weeks have elapsed.
..............................................
Mr S. Webb, Member
CATCHWORDS
Practice and Procedure - Standing - joinder - person whose interests are affected by the decision - interests affected - Tribunal discretion - factors relevant to exercise of discretion – joinder granted
Freedom of Information Act 1982
Administrative Appeals Tribunal Act 1975 ss 2, 30, 31
Re Peters & Department of Health and Aged Care (1999) 56 ALD 561
Re Scott & Secretary, Dept of Social Security (1996) 42 ALD 738
Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No1) (1980) 3 ALD 74
Re Marine World Victoria Ltd and Minister for Arts, Heritage and Environment (1986) 10 ALD 262
REASONS FOR DECISION
6 April 2006 Mr S. Webb, Member 1. The Applicants have applied for review of the decision of the Respondent in relation to their application for release of information under the Freedom of Information Act 1982 (“the FOI Act”) concerning the valuation of certain properties in the Australian Capital Territory. By the Respondent’s decision certain information was determined to be exempt from release.
2. Two written applications for joinder are before the Tribunal in these proceedings. Written application by the Australian Capital Territory Planning and Land Authority (“the Authority”) was filed on 29 March 2006 and written application by CB Richard Ellis Proprietary Limited (“the Company”) was filed on 4 April 2006.
4. A decision in relation the two joinder applications was given orally during the hearing. These written reasons are consistent with that decision.
3. The Tribunal has discretion to order a person whose interests are affected by the decision under review to be joined as a party to a proceeding (subs 30(1A), Administrative Appeals Tribunal Act 1975 (“the AAT Act”)). A decision of the Tribunal that the interests of a person are affected by the decision under review is conclusive (subs 31(1), AAT Act).
5. The Authority made written submissions and contended that its interests are affected by the decision under review to the extent that privilege is claimed over information that is within the terms of the decision and, otherwise, the information was obtained in confidence. The Company made written submissions and contended that its interests are affected to the extent that release of the information would result in the release of trade secrets or the diminution of the commercial value of the information or, otherwise, its business, commercial or financial interests would be adversely affected.
6. The Applicants made written submissions and are opposed to the joinder applications, contending that significant delay and increase in costs would ensue from the grant of standing in either case.
7. The Respondent supported the applications for joinder, contending that evidence adduced by the Authority and the Company would be of assistance to the Tribunal in resolving the substantive issues before it.
8. I note in passing with concern that the Respondent informed me today that it is not ready to proceed with the substantive matter as listed in any event. Mr Chand informed me that the Respondent would be calling three witnesses, but had neither informed the Applicants, nor filed affidavits, nor informed the Tribunal, nor made arrangement for those witnesses to give their evidence. I understand that the witnesses the Respondent intends to call are a witness from the Australian Valuation Office, Mr Thew from the Authority and Mr Flannery from the McCann business. In those circumstances it is not surprising that the Applicants complained, correctly, that it would be unfair to proceed to hear the substantive issue and permit the Respondent to call witnesses without proper notice to other parties. As it happens, the substantive matter will not be heard today and orders concerning evidence will be given.
9. I am mindful of the authorities to which attention has been drawn in submissions. In Re Peters & Department of Health and Aged Care (1999) 56 ALD 561, Senior Member Bayne reviewed the authorities and discussed the ‘zone of interests’ approach, concerning the applicable statute under which the substantive application is made, in order to determine whether the party seeking standing has an interest that it is the object or purpose of that enactment to protect. However, the existence of such an interest is not necessarily determinative of the question of standing in proceedings such as these, although it is a relevant factor that may weigh in favour of a grant of standing. The Tribunal must determine for the purposes of s 30(1A) of the AAT Act whether the interests of the person seeking standing are affected by the decision under review.
10. What is required is an interest that is ‘special’ to the extent that it is greater than the interest of an ordinary member of the public and is substantial and significantly different than the interests of any other party to the proceedings (Re Scott & Secretary, Dept of Social Security (1996) 42 ALD 738 at 741).
11. Carefully considering the material placed before me and the submissions of the parties I accept that the Authority has interests that are affected by the decision under review and I so find. Principally that interest is the opportunity to press a claim of privilege in relation to information within the terms of the decision under review pursuant to s42 of the FOI Act. That is a substantial interest. Furthermore it is an interest that is significantly different than the interests of the Respondent, whose interests, as given today, are pursuant to ss 33A (affecting relations with States), 43 (business affairs) and 45 (material obtained in confidence) of the FOI Act.
12. I do not accept the Applicants’ submission that it is necessary to resolve the question of privilege contended for by the Authority for the purpose of determining the issue of standing. Resolution of the privilege contended for will be a matter for the Tribunal to determine when hearing and deciding the substantive issues in due course. Nor do I accept the Applicants’ submission that the Authority has been dilatory in its approach to these proceedings. I accept that the Authority and the Company were made aware of the application before the Tribunal in or about mid March 2006 and acted with reasonable promptness thereafter in filing applications for joinder.
13. I note in passing that the Respondent’s intention to call and rely upon the evidence of witnesses that would be called by the parties seeking standing does not mean that its interests are the same as those of the joinder applicants. Plainly enough there is a confluence of interests of the parties in relation to the decision under review. Nevertheless, a confluence of interests does not mean that the interests are not separate and distinguishable. I am satisfied that is the case in relation to the Authority’s interest concerning privilege and so find.
14. However, the interests asserted by the Authority concerning issues of confidentiality pursuant to s45 of the FOI Act are not significantly different than those of the Respondent and would not, alone, be sufficient to warrant the grant of standing.
15. I accept and find that the Company has an interest that is affected by the decision under review, that is, the protection of its intellectual property rights in information purchased from McCann Property and Planning (“the McCann business”). That interest, pursuant to s43 of the FOI Act, is said to be in relation to either trade secrets, the commercial value of the information (that would allegedly be diminished if the information is released), or the adverse and unreasonable affect on the business, commercial or financial affairs of the Company that would allegedly result from release of the information.
16. While I accept that the interest of the Company is ‘special’, it is presently prospective, as the precise extent of the claimed intellectual property and the specific information to which it pertains is neither specified nor clear. Nonetheless, that does not extinguish the Company’s assertion that its interest would be adversely affected by release of the information in question. Without resort to the information claimed to be exempt and on the materials placed before me today, it appears that some of the information in issue was generated by the McCann business acquired by the Company. That being so, I accept that the interest asserted by the Company is one of substance that is to be distinguished from the interests of other parties and persons seeking standing in these proceedings.
17. Are there sufficient grounds, in the circumstances, to exercise the discretion under s 30(1A) of the AAT Act to grant standing to one or both of the joinder applicants?
18. Considering factors relevant to the exercise of the Tribunal’s discretion I note the decision Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No1) (1980) 3 ALD 74, where Davies J said at 81:
“While it will ordinarily be the duty of the Tribunal to make an order joining a party whose interests are affected by the decision under review, that duty is limited by the function which the Tribunal performs and by its duty to provide a fair hearing and to deal with the matter as expeditiously as the subject matter of the review permits.”
19. I also note the decision of Re Marine World Victoria Ltd and Minister for Arts, Heritage and Environment (1986) 10 ALD 262, in which Deputy President Thompson said at 271 (paragraph 32):
“…That discretion must, of course, be exercised rationally with regard paid to all of the circumstances of the proceeding and the nature of the interest of each of the persons applying to be made a party. It is necessary to have regard to the nature of review proceedings before the Administrative Appeals Tribunal. As was pointed out in Re Control Investments Pty Ltd, the Tribunal is required by the AAT Act to provide a fair hearing and to carry out the review as expeditiously as the subject matter of the review permits… The increased cost of the proceeding to the applicant and respondent which will result from the joinder of additional parties in the proceedings is a factor to be taken into account…”
20. In the circumstances if standing is granted delay and additional costs will result. That is the basis of the Applicant’s stated objection to the joinder applications. However, the increase in costs and delay that will ensue from the grant of standing must be weighed against the particular interests pressed by those seeking standing.
21. In the circumstances I am satisfied that it is appropriate to exercise the discretion to grant standing to the Authority and to the Company. In performing its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick (s2A, AAT Act). Those values stand in relation to each other. No one stated objective is to be advanced without reference to and consideration of the other stated objectives. Economy and quickness, however desirable, do not outweigh fairness, but are measured in relation to it. In the circumstances it is proper and fair to permit those seeking standing in these proceedings, whose interests are affected by the decision under review, to present their cases and be heard. It is also proper and fair to bring these proceedings to conclusion without undue delay or any unreasonable increase in costs to the existing parties.
decision
22. I order that the Authority and the Company are to be joined as parties to the proceedings. Without disclosing information claimed to be exempt, the joined parties are to file and serve affidavits setting out all of the evidence on which they intend to rely in support of the claimed exemptions within 14 days. I accept their undertakings that there will not be any increase in the number of witnesses that would otherwise be called by the Respondent.
23. The present hearing will be adjourned to be relisted in 4 weeks or as soon thereafter as is convenient.
24. With regard to the Respondent’s intention to put on additional evidence, affidavits setting out all of the evidence on which the Respondent intends to rely in support of the claimed exemptions are to be filed and served within the period of 14 days.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: ............(P. STRAUCH)............................
AssociateDate of Hearing 6 April 2006
Date of Decision 6 April 2006
Representatives of the Applicants Rhonda Nicholas
Nicholas Dibb
Representatives of the Respondent Avenish Chand
Clayton Utz
Representatives of Joinder Applicant 1 Justin Hyland & Sarah McCarthy
Australian Government Solicitor
Representatives of Joinder Applicant 2 Mark Flint & Alisa Taylor
Bradly Allen
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