Cosenza v Australian Securities and Investment Commission - [2008] FMCA 1548

FEDERAL MAGISTRATES COURT OF AUSTRALIA

COSENZA v AUSTRALIAN SECURITIES & INVESTMENT COMMISSION

[2008] FMCA 1548

ADMINISTRATIVE LAW – Freedom of information – declarations sought – jurisdiction of Court – application dismissed.

Freedom of Information Act 1982 (Cth), ss.15(1), 15(2)(e), 30A(1)(b), 53, 55, 56, 57
Acts Interpretation Act 1901 (Cth), ss.15AA, 15AB, 15C
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Federal Magistrates Act 1999 (Cth), ss.10, 10(1), 16, 16(1)

Australian Competition and Consumer Commission v Australian Competition Tribunal (2006) 152 FCR 33
Australian Health Insurance Association Ltd v Esso Australia Pty Ltd (1993) 116 ALR 253
Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2007) 157 FCR 260 IMF (Australia) Ltd v Sons of Gwalia Ltd (2004) 211 ALR
R v Commonwealth Court of Conciliation and Arbitration; ex parte Barrett [1945] 70 CLR 141
Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150
Wang v Minister, Department of Employment and Workplace Relations (2007) FCAFC 17

Applicant:

DEAN COSENZA

Respondent:

AUSTRALIAN SECURITIES & INVESTMENT COMMISSION

File Number:

ADG 157 of 2008

Judgment of:

Simpson FM

Hearing dates:

9 September; 15 October 2008

Date of Last Submission:

15 October 2008

Delivered at:

Adelaide

Delivered on:

15 October 2008

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondent:

Ms NJ Haslam

Solicitors for the Respondent:

Australian Securities and Investment Commission

ORDERS

The applicant have liberty to amend the claim for relief in his application for order of review filed 30 June 2008 by inserting the words “or in receipt of any other means tested pension” after the words “Freedom of Information Act 1982 [Fees & Charges] Cth”.
The application filed on 30 June 2008 be dismissed.
The applicant pay the respondent’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG 157 of 2008

DEAN COSENZA

Applicant

And

AUSTRALIAN SECURITIES & INVESTMENT COMMISSION

Respondent

EX TEMPORE REASONS FOR JUDGMENT

REVISED FROM TRANSCRIPT

This is an application brought by Dean Cosenza against the Australian Securities and Investment Commission (“ASIC”), commenced on 30 June 2008. It was commenced by lodgement of a form 6 and sought various orders: Firstly, it sought a declaration that for the purposes of “the act” that a person be deemed to be in financial hardship should they be in receipt of a prescribed benefit pursuant to reg.6(1)(b) of the Freedom of Information (Fees and Charges) Regulations 1982 (Cth) (“the regulations”); secondly, it sought an order that the respondent acknowledge the financial hardship of the applicant; thirdly, it sought an order that the respondent supply the applicant with all personal information pursuant to “the act” as already requested by the applicant of the respondent; fourthly, it sought an order that all such personal information be provided by the respondent to the applicant forthwith, or as soon as practically possible. It also sought costs, liberty to apply and any other order that the Court deemed appropriate.
Earlier today, at the bequest of the applicant, I granted an amendment to the first of the orders that are sought in the application by insertion of the words “or in receipt of any other means-tested pension” after the reference to the regulations under the Freedom of Information Act 1982 (Cth) (“the Act”).
The respondent filed a response on 11 August 2008 in which it indicated the following grounds of opposition to the orders sought:
a)Regulation 6(3) of the regulations provide that the application fee of $30 in relation to an application under s.15(1) of the Act does not apply in relation to requests for access to documents that contain information relating to a claim for, or a decision in relation to, the payment to the applicant of a prescribed benefit;
b)The documents requested by the applicant under s.15(1) of the Act do not meet the criteria set out in reg.6(3) of the regulations, and accordingly, regulation 6 of the regulations does not apply to the applicant’s application under s.15(1) of the Act;
c)Despite requests by the respondent, the applicant failed to provide sufficient detail of his income and expenses to enable an assessment of financial hardship by the respondent to be made. Accordingly, the applicant’s application for a remission of the application fee on grounds of financial hardship, pursuant to s.30A of the Act, was rejected (see annexures B, D, E, E1, F and G to the affidavit of the applicant filed on 30 June 2008);
d)As payment of the application fee of $30 set out in reg.5(a) of the regulations has not been received by the respondent, the applicant’s application under s.15(1) of the Act does not comply with the requirements set out in s.15(2)(e) of the Act.
The matter came before me on 11 August 2008, which was the first return date, and the matter was adjourned to 9 September 2008. On 9 September 2008 I heard argument. Mr Cosenza, the applicant, was not legally represented and has not, as far as I am aware, had the assistance of legal representation throughout these proceedings, whether in court or out of Court. Ms Haslam appeared for the respondent.
On 9 September 2008 Ms Haslam indicated that she had not expected the matter to be argued that morning but she was nevertheless prepared to argue the matter if the applicant wished. The applicant was keen that the matter proceed, and I therefore started hearing the argument.
Mr Cosenza put all of his submissions. He put that there was ambiguity in the Act that required elucidation. He referred the Court to reg.6 of the regulations. He also referred to s.30A(1)(b) of the Act as providing him with some assistance. He also referred to, I thought, s.15AA of the Acts Interpretation Act 1901 (Cth). Earlier today he referred me to s.15AB of the Acts Interpretation Act, and I will come to those sections a little later.
He also relied on s.53 of the Act. His submission was that there was ambiguity in the legislation that should be resolved by looking at the purpose of the legislation and the way other jurisdictions and bodies, such as the Courts themselves, have approached such legislations, so that, for example, anybody on a pension would be deemed to be suffering financial hardship and would therefore qualify for a fee exemption.
It is not necessary for me in these reasons, for reasons that will become apparent later, to go into the detail of Mr Cosenza’s submissions.
On 9 September 2008, when I was first hearing submissions in the matter, Ms Haslam for the respondent commenced putting her submissions and indicated that she had believed that the application was in reality an application for a review of a decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). She said that this was because any appeals under the Act should have gone to the Administrative Appeals Tribunal (“the AAT”). She submitted that the Federal Magistrates Court would only have jurisdiction to deal with the matter as an ADJR review application. It was put that there was no power under the Act for the Federal Magistrates Court to review decisions of the respondent.
During Ms Haslam’s submissions, Mr Cosenza indicated to the Court that his application was neither an appeal against the decision of the respondent, which would have to go to the AAT, or an ADJR application, which could rightly have been brought before the Federal Magistrates Court. He said, instead, it was an application seeking declarations in relation to legal issues and that on this basis it was properly brought before the Court.
When this jurisdictional argument became apparent it was decided that the matter would be adjourned for a period, to enable the parties to consider the issue in more detail.
At the hearing on 9 September 2008, the applicant relied upon an affidavit of his sworn on 30 June 2008 and filed the same day. I do not propose to go into the detail of Mr Cosenza’s affidavit, other than to say that it details the difficulties that Mr Cosenza has had over a number of years, with his wife, the difficulty he has had with work, his financial position, and the basis upon which he was seeking the documents that he has from the respondent. He annexed to the affidavit a number of documents, some of which are also to be found annexed to a further affidavit that was filed by the respondent.
The respondent’s affidavit was filed on 24 September 2008 and details contact that the respondent had with the applicant concerning the issues that are raised by these proceedings. Again this affidavit, in this case of Lydia Macri, annexed a number of items of correspondence which have gone between the parties.
I have read both of those affidavits and, whilst not detailing all that is contained in those affidavits, I have taken into account in these reasons all of the material contained in those affidavits.
The nub of the problem here arises from the following facts: The applicant applied to the respondent under the Act for certain documents. He at some stage requested an exemption from having to pay the $30 fee that is provided for in the regulations. The legislation and the regulations provided that the fee can be waived in certain circumstances. Certain communications between the applicant and the respondent were insufficient to satisfy the respondent that it was appropriate for it to waive the fee. The applicant is unhappy about the fact that there was no waiver of the fee, and it is those facts that really bring these proceedings before the Court.
As I already mentioned, on 9 September 2008 the applicant put all of his submissions to me about why the orders that he was seeking should be granted. I do not propose to go into them in detail because I believe that the matter can be resolved and decided on the basis of a very narrow issue, namely, whether or not the Court has jurisdiction to hear the matter.
The applicant submits that the Court can make declarations of right, as is obviously the case. Section 16 of the Federal Magistrates Act 1999 (Cth) provides as follows. Section 16(1):
The Federal Magistrates Court may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.
If the applicant relies on that section then of course he has to satisfy the Court that the Court has original jurisdiction to deal with the matter.
Section 10 of the Federal Magistrates Act deals with original jurisdiction. Section 10(1) says this, under the heading Jurisdiction:
The Federal Magistrates Court has such original jurisdiction as is vested in it by laws made by the parliament:
(a) by express provision; or
(b) by the application of section 15C of the Acts Interpretation Act 1901 to a provision that, whether expressly or by implication, authorises a civil proceeding to be instituted in the Federal Magistrates Court in relation to a matter.
Section 15C of the Acts Interpretation Act provides as follows:
Where a provision of an act, whether expressly or by implication, authorises a civil or criminal proceeding to be instituted in a particular court in relation to a matter:
(a) that provision shall be deemed to vest that court with jurisdiction in that matter;
(b) except so far as the contrary intention appears, the jurisdiction so vested is not limited by any limits to which any other jurisdiction of the court may be subject; and
(c) in the case of a court of a territory, that provision shall be construed as providing that the jurisdiction is vested so far only as the Constitution permits.
In any given case it will therefore be a question of construction of the legislation as to whether or not this Court is expressly or impliedly invested with jurisdiction by another act. In determining this issue, in Australian Health Insurance Association Ltd v Esso Australia Pty Ltd (1993) 116 ALR 253 Black CJ draws distinction between a grant of jurisdiction and the grant of a power that could be used in the exercise of jurisdiction.
Section 10 of the Federal Magistrates Act is very similar to s.19 of the Federal Court of Australia Act 1976 (Cth) which says:
The court has such original jurisdiction as is vested in it by laws made by the parliament.
I do not consider that there is any significant difference in s.10 of the Federal Magistrates Act and s.19 of the Federal Court Act. The words are a little different, but in my view the two sections have been interpreted in such a way that a similar approach is to be adopted in relation to both the Federal Court and the Federal Magistrates Court.
It is clear that the original jurisdiction of both the Federal Court and the Federal Magistrates Court is limited to those matters in respect of which parliament has specifically provided that the Court is invested with original jurisdiction. I refer to the case of Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 161.
It is important to note that both the Federal Court and the Federal Magistrates Court, unlike the superior courts of the states, are not courts of unlimited jurisdiction, and I refer to the case of Wang v Minister, Department of Employment and Workplace Relations (2007) FCAFC 17, or as was expressed by French J, as he then was, in IMF (Australia) Ltd v Sons of Gwalia Ltd (2004) 211 ALR at 231, which he said:
The jurisdiction of the Federal Court is entirely statutory and is conferred in relation to matters whose content derives from the statute conferring the jurisdiction.
A matter may properly be said to arise under a federal law if the right or duty in question in the matter owes its existence to federal law or depends upon federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law.
What is said applies equally to the Federal Magistrates Court.
His Honour referred to the case of Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2007) 157 FCR 260 in which was quoted the case of R v Commonwealth Court of Conciliation and Arbitration; ex parte Barrett [1945] 70 CLR 141 at 154.
The power of the Commonwealth parliament to confer jurisdiction on the Federal Magistrates Court derives from s.77(1) of The Constitution – and I refer to the case of Australian Competition and Consumer Commission v Australian Competition Tribunal (2006) 152 FCR 33.
So in this case it is necessary to look at the applicable legislation, which in this case is the Freedom of Information Act, and see whether, expressly or impliedly, this Court is given jurisdiction to deal with the application that we are here concerned with.
Review of decisions under the Act are dealt with in Part VI of the Act. Section 55 provides that an application may be made to the AAT for review of decisions such as the decision that is challenged in this case. Section 56 allows for application to the AAT where there is delay in making a decision. Section 57 provides for complaints to be made to the ombudsman.
I see nothing in the Act, nor has the applicant brought to my attention anything in the Act, that would expressly or impliedly give this Court jurisdiction to deal with his application as it has been presented to this Court. The applicant relied on s.15AB of the Acts Interpretation Act.

I understood, on the earlier occasion, him to be referring to s.15AA of the Acts Interpretation Act which says:
In the interpretation of a provision of an act, a construction that would promote the purpose or object underlying the act (whether that purpose or object is expressly stated in the act or not) shall be preferred to a construction that would not promote that purpose or object.
That section, it seems to me, does not give the Court jurisdiction at all. Rather, it speaks about how the Court should approach the question of interpretation of statutes. It is a common requirement for courts to approach legislation in the way that it is suggested by s.15AA of the Acts Interpretation Act.
Today the applicant in his submissions relied on s.15AB of the Acts Interpretation Act. That section deals with the use of extrinsic material in the interpretation of an act. I do not propose to read that section out in detail. It is quite a lengthy section, but again, it is simply another aid to the interpretation of legislation and the situations where extrinsic material can be used in interpreting legislation. It does not go to the jurisdictional basis of the Court’s work. So those sections are of no assistance to the applicant.
For the above reasons I believe the application here is misconceived and should be dismissed. I make the orders to be found at the beginning of these reasons.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Simpson FM

Associate: Julie Davey

Date: 14 November 2008