Cyno Pty Ltd and Australian Fisheries Management Authority and an or

[2002] AATA 896

Administrative

Appeals

Tribunal

 

DIRECTION AND REASONS FOR DIRECTION [2002] AATA 896

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2001/98

GENERAL ADMINISTRATIVE  DIVISION		)
Re		CYNO PTY LTD

Applicant

And AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY

Respondent

AndOCEAN FRESH FISHERIES PTY LIMITED

NEVILLE PETER ROCKLIFF and HELEN MARY ROCKLIFF

Parties Joined

DECISION

Tribunal Mr J Handley (Senior Member)

Date2 October 2002

PlaceHobart

Decision For the reasons given orally on 2 October and by these written reasons, the documents identified as confidential shall be released to the legal representatives of the parties.

(Sgd J Handley)

Senior Member

CATCHWORDS

Practice and Procedure – parties sought confidentiality orders pursuant to s35 – confidential information contained in documents lodged by the respondent pursuant to s37 – whether orders prohibiting disclosure appropriate – oral reasons for order that documents be made available to legal representatives only – request for written reasons for orders made.

Administrative Appeals Tribunal Act 1975 – ss33(1),(3),35(1),37, 39

Re The Will of F B Gilbert (Deceased) 1946, 46 SRNSW 318

Commissioner of Taxation v Beddoe, 1996 68 FCR  446

REASONS FOR DIRECTIONS MADE PURSUANT TO S35 OF THE ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975

2 October 2002 Mr J Handley (Senior Member)    

1.      The applicant has applied to the Tribunal to review a decision of a delegate of the respondent, who reaffirmed a primary decision to refuse the granting of a fishing permit to allow the use of trawl gear in the Norfolk Island Offshore Demersal Fin Fishery.   

2. Subsequent to the commencement of the proceedings applications were made by Ocean Fresh Fisheries Pty Limited (Ocean Fresh) and Neville Peter Rockliff and Helen Mary Rockliff (Rockliff) to be made parties to the proceedings pursuant to s30(1A) of the Administrative Appeals Tribunal Act 1975 (“the Act”).   Being satisfied that the interests of Ocean Fresh and Rockliff were affected by the decision under review, decisions were made joining them as parties to these proceedings on 21 May 2002 and 7 June 2002 respectively.

3. By reason of the obligations upon the respondent pursuant to s37 of the Administrative Appeals Tribunal Act to lodge certain documents (the T documents), the applicant and the parties joined have subsequently applied to restrict the disclosure of certain parts of the T documents that respectively relate to their applications upon the respondent.    In effect the applicant and the parties joined seek to prohibit each other from having access to certain information they put before the respondent.   Common elements between the parties giving rise to their objections may be briefly summarised as follows:

(i)Certain information is of a commercial and sensitive nature.

(ii)Disclosure of the information may affect the ability to compete within the fishery.

(iii)Disclosure of the information will not assist the applicant or the parties joined to advance their application or to protect their interests.

(iv)Information was initially provided to the respondent and it was not anticipated that access to that information would be available to others.

(v)Some of the information relates to scientific reports obtained by the applicant and/or the parties joined at considerable expense which should not be available to or known by other parties.

(vi)Some of the information relates to scientific equipment and the fitout of the equipment and fishing vessels owned or operated by the applicant or the parties joined, which by reason of that equipment and fitout affecting that party’s competitiveness it should not be known to the other parties.

4.      The hearing of the objections was listed in Hobart on 2 October.    Mr Cunningham appeared personally on behalf of the applicant.   Mr Knoll of counsel and Mr Davis of counsel respectively appeared on behalf of Ocean Fresh and  Rockliff.   Mr Knoll is located in Sydney and Mr Davis is located in Melbourne.   Both gave their submissions by telephone.   The hearing was not recorded.

5.      Mr Bowen acts on behalf of the respondent, but he did not appear.    On 2 September 2002 he wrote to the Registrar advising that the respondent was prepared to “abide by the decision of the Tribunal” as advised in due course.

6.      Having heard the submissions from Mr Cunningham, Mr Knoll and Mr Davis I indicated that I proposed to make certain directions which I then outlined.    I was then asked by Mr Knoll and Mr Davis jointly to stand down for 10 minutes whilst they privately discussed the proposed directions.   When the hearing resumed, I was advised by Mr Davis that he and Mr Knoll jointly applied for written reasons for the making of the directions and they requested that the directions not be made operative until the expiration of 28 days following the delivery of the written reasons for the directions.

7. Mr Cunningham did not oppose the request made by Mr Davis. Despite my frustration – which was expressed to the representatives of the joined parties, and my indication that there appeared no power within the Act to compel the production of written reasons for the making of a direction, I indicated that brief reasons would be made available.

8. I indicated to the parties that I intended to make certain directions, which would be put in writing, directing that the documents made available by the respondent be available only to the legal representatives of each party as presently instructed. I indicated that in the event that any party at a later stage proposed to engage witnesses – or for any other reason - they would be at liberty to apply to vary the directions to seek a further direction that the documents be made available to those persons. The directions that I will make, consistent with what I indicated at the directions hearing, are recorded at the end of these reasons in a form which I would have made, having regard for the provisions of s35 of the Act.   

The Legislation

9.      The applicant and the parties joined are “the parties to a proceeding before the Tribunal for review of a decision” pursuant to s30(1)(d) of the Act. The parties who have been joined are parties to this proceeding by reason of the orders that have been made pursuant to s30(1A) of the Act (refer earlier).

10. Section 33(1) of the Act relevantly defines the procedure of the Tribunal as follows:-

“In a proceeding before the Tribunal:

(a)the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;

(b)the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and

(c)the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.”

11.     Section 33(3) provides that a direction as to procedure at or in connection with a hearing may be varied or revoked at any time by any empowered member.

12. Section 35(1) of the Act provides that the hearing of the procedure shall be in public. Subsection (2)(c) relevantly provides:

“Where the Tribunal is satisfied that it is desirable to do so by the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order;

…

(c)give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.”

13. Subsection (3) of s35 relevantly provides:

“In considering:

(a)       …

(b)whether publication, or disclosure to some or all of the parties, of evidence given before the Tribunal, or of a matter contained in a document lodged with the Tribunal or received in evidence by the Tribunal, should be prohibited or restricted;

the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.”

14. Section 37 of the Act provides that “a person” who has made a decision that is the subject of an application for review must lodge certain documents with the Tribunal.   The respondent has lodged the documents (the T documents) and the objections as to disclosure have given rise to the hearing of the application precipitating these reasons.

15. Section 39 of the Act provides:

“Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.”

The Submissions

16.     Mr Cunningham submitted that the Tribunal will ultimately make its decision upon the basis of all the documentation before it.   He submitted that all parties must have access to all documents and no objection was made by him to release the information provided by his client to AFMA save that it be made available only to the legal representatives of the party.

17.     Mr Knoll on behalf of Ocean Fresh submitted that there were issues concerning the total allowable catch (TAC), issues as to depletion of fish stock and AFMA policy generally which would be reviewed.    He submitted that there was some doubt whether the Tribunal would benefit by each party having access to information that it did not have at the time that the respective applications were made to the primary decision-maker.

18.     Mr Davis on behalf of Rockliff made similar submissions as were made by Mr Knoll, but submitted further that there was some doubt whether the information made available by Ocean Fresh and his clients to AFMA were of any relevance to the applicant in the present review.   He submitted that disclosure of the confidential information of his clients could cause them significant harm.

19.     As a “fall back” position, Mr Davis submitted that if it was determined that some part of the documentation that he sought to be declared confidential was deemed relevant to the proceedings, that there should be a selective disclosure only.  As a further “fall back” position, he submitted that if it was determined that there be disclosures to the solicitors, there not be disclosure to any other persons, specifically any “expert” witness that may be engaged by a party.

Reasons

20.     I indicated to the parties that procedural fairness and citizen review of the decisions of Government  dictated that each party to the proceeding should have all the documented information that has been provided by the respondent (being an Agency of Government).   I indicated that Australia has a proud tradition of citizen review and any fetter to open review could erode those principles.   Additionally, I indicated that it would be wrong for the Tribunal to be in possession of information, while standing in the shoes of the decision-maker, which is not known to all parties and to which access is prohibited.

21. I indicated that there have been many occasions where the Tribunal has heard applications under s.35 of the Act, respecting the confidentiality of certain information, but releasing it on certain conditions. The responsibility and authority for the Tribunal to make directions of that kind is well within ambit of s33. I indicated that the release of the information to the legal representatives, as presently instructed, only would cause a sufficient restraint upon the release of information which might harm the parties - as they submitted – yet at the same time permitting the representatives of the parties to advance their respective clients applications. I acknowledged that the making of directions of this type might interfere with the solicitor/client relationship, yet s33(3) permits a party at any time to apply to vary. I was mindful that an occasion might emerge where a representative would be hampered by the inability to communicate to his client the information contained in the document sought to be made confidential, and in those circumstances application could be made to vary these directions. Additionally, I recognised that should a representative need to engage witnesses for the purposes of giving evidence at any subsequent hearing that leave would be made available to permit an application to vary these directions to allow the information otherwise described as being confidential being made available to those witnesses.

22. At the time of preparing these reasons, I am not informed whether any appeal is contemplated or intended under the Act or under the Administrative Decisions (Judicial Review) Act against the making of these directions, but I would urge the parties to be mindful of the decision In Re The Will of F B Gilbert (Deceased) 1946, 46 SRNSW 318 at 323 where the New South Wales Supreme Court decided:

“… there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion  which determines substantive rights.    In the former class of case if a tight rein were not kept upon interference with orders of judges of first instance the result would be disastrous to the proper administration of justice.   The disposal of cases could be delayed interminably and costs heaped up indefinitely if a litigant with a long purse or a litigious disposition could at will in effect transfer all exercises of discretion in interlocutory applications from a judge in chambers to a court of appeal.”

23.     In Commissioner of Taxation v Beddoe, 1996 68 FCR 446, Spender J at 453 decided:

“It is my opinion wholly undesirable that the process contemplated by the AAT Act should be fragmented by applications seeking to challenge intermediate directions or determinations made along the way to reaching an ultimate determination of the issue before the Tribunal… …”

24. The sentiment emerging from these decisions is clear. The proper and expeditious management of the present application should not be subjected to interference or delay following the making of these directions. Should any representative find in practice that their ability to adequately represent their client or assist the Tribunal in the review by these directions, they are of course at liberty to apply under s33(3) to vary. I would urge the parties otherwise to ensure that this application can proceed without delay and without undue costs. The safeguards as to confidentiality are well recognised by s35, the Tribunal is not unfamiliar with making Orders under that section and in recognising the confidential nature of some information that may be relevant in a review.

25.     Accordingly, I propose to make directions in the following terms which shall have effect from a date 28 days after the delivery of these reasons (refer s43(5B)).   The directions will be in the following terms:

“ORDER

Upon hearing Mr Cunningham for the applicant, Mr Knoll on behalf of Ocean Fresh Fisheries Pty Limited and Mr Davis on behalf of Neville Peter Rockliff and Helen Mary Rockliff and for the reasons given orally at the directions hearing on 2 October 2002 and for the written reasons published and being satisfied that it is desirable to do so by reason of the confidential nature of some of the documents lodged by the respondent pursuant to s37 of the Administrative Appeals Act 1975, IT IS DIRECTED:

(1) The documents referred to in the Schedule below be prohibited from disclosure to all persons, save for the members of the Tribunal constituted to hear the application, the staff and officers of the Tribunal and the legal representatives of the parties to this review as presently instructed.

(2)These directions shall not come into operation until 1 November 2002; and

(3)Liberty to the parties to apply to vary these directions.

Mr J Handley

Senior Member

Schedule

The documents being the subject of this Order are identified as follows:

In relation to the applicant, Cyno Pty Limited – the documents as identified in the letter of Simmons Wolfhagen, dated 7 August 2002.

In relation to the party joined, Ocean Fresh Fisheries Pty Ltd – the documents as identified in a schedule attached to the letter of Michelle Sillar, dated 29 July 2002.

In relation to the parties joined, Neville Peter Rockliff and Mary Helen Rockliff – the documents as identified in a schedule attached to the letter of Corrs Chambers Westgarth dated 13 August 2002.”