Fastbet Investments Pty Ltd; Commissioner of Taxation and (Freedom of information) - [2023] AATA 2955

Fastbet Investments Pty Ltd; Commissioner of Taxation and (Freedom of information) [2023] AATA 2955 (12 September 2023)
Division:FREEDOM OF INFORMATION DIVISION
File Number: 2023/4930
Re:Commissioner of Taxation
APPLICANT

Fastbet Investments Pty LtdAnd
RESPONDENT

DECISION
Tribunal:R Cameron, Senior Member
Date:12 September 2023
Place:Melbourne

Pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975, the Tribunal orders that the operation or implementation of paragraphs 4 and 5 on page 2 of the reviewable decision made on 5 June 2023 be stayed until the hearing and determination of the application for review.
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R Cameron, Senior Member
Catchwords
PRACTICE AND PROCEDURE – stay application – freedom of information decision – applicant required to undertake searches of documents – applicant seeking to be excused from obligations – live issue – preservations of status quo – prejudice to parties – real possibility that application for review would be rendered nugatory – public interest considerations do not override importance of preserving status quo – procedural fairness not determinative or otherwise fatal to stay application – insufficient evidence regarding financial consequences for respondent – stay application granted
Legislation
Administrative Appeals Tribunal Act 1975
Freedom of Information Act 1982
Cases
Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130
Levi v Companies Auditors and Liquidators Disciplinary Board [2013] FCA 719
Matthews and Australian Securities and Investments Commission & Ors [2010] AATA 649
Scott v Australian Securities and Investments Commission (2009) 51 AAR 114
REASONS FOR DECISION
R Cameron, Senior Member
12 September 2023
INTRODUCTION

The applicant, the Commissioner of Taxation, seeks an order from the Tribunal under s 41(2) of the Administrative Appeals Tribunal Act1975 (‘AAT Act’) staying the operation or implementation of paragraphs 4 and 5 of a decision made by the Acting Freedom of Information Commissioner on 5 June 2023 (‘reviewable decision’).[1]
[1] The reviewable decision is document T2 of the T documents.
The application is opposed by the respondent, Fastbet Investments Pty Ltd (‘Fastbet’).
On 16 November 2017, Fastbet made a Freedom of Information request by way of a prescribed form seeking several classes or categories of documents from the applicant for a time period of 1 July 2016 to 16 November 2017 (‘FOI request’).[2]
[2] The FOI request is document T3 of the T documents.
The classes or categories of documents that were subject of the FOI request were described as follows:
Any emails, notes, memorandum, minutes of meetings, reports, searches and requests, either internal or other and any other material that evidences any communications, written or verbal including those from mobile phones and any internal ATO messaging systems including but not limited to MOC between officers of ATO and any third party but not limited to calls and correspondence between [9 officers of the ATO were named in this portion of the FOI request but will not be reproduced in these reasons for the purposes of privacy] in relation to the Issuing of DEBT/SDM on 19/9/2017 by [an officer of the ATO was named in this portion of the FOI request but they will not be reproduced in these reasons for the purposes of privacy] and the lodgement of Caveat N738402 on 10/10/2017 including EVOOO567778SDEC [sic].
On 14 February 2018 a Legal Officer, General Counsel of the applicant made a decision in writing in response to the FOI request.[3] In the letter, apparently 73 documents were identified as being in the possession of the applicant within the classes, or categories of documents enumerated in the FOI request. The decision granted access to some of those documents in part and otherwise claimed exemptions under several provisions of the Freedom of Information Act 1982 (‘FOI Act’). Relatively detailed reasons were furnished by the Legal Officer, General Counsel for the decision reached.
[3] Document T4 of the T documents.
A written request for an internal review of the original decision made on 14 February 2018 was made by the respondent to the applicant on 14 March 2018.[4]
[4] The request for an internal review made by Fastbet on 14 March 2018 is document T5 of the T documents.
On 17 May 2018, by operation of s 54D of the FOI Act, the applicant was deemed to have made an internal review decision personally affirming the original FOI Decision of 14 February 2018. The request for an internal review of the original decision was subsequently determined by an officer of the applicant on 24 May 2018.[5] The determination on 24 May 2018 affirmed and varied parts of the original decision made on 14 February 2018.
[5] Document T6 of the T documents.
Subsequently, the respondent sought a review by the Office of the Australian Information Commissioner as it was entitled to do, under s 54L of the FOI Act. Following that review, the reviewable decision was made by the Acting Freedom of Information Commissioner.
It is worthwhile reproducing, in full, the contents of paragraphs 4 and 5 of the reviewable decision. They provide as follows:
4.    The ATO must also take all reasonable steps to find documents within the scope of the request, which involves:
a.    identifying the scope of the request based on a flexible and common-sense interpretation of its terms by:
-    including single MOC messages[6]
-    including messages which appear to be within scope based on the information contained within them, as well as contextual information, such as when and by whom they were sent, and the proximity in time of the communications between relevant officers to the issuing of the particular debt matter and/or the lodgement of the particular caveat
-    not limiting the scope to MOC conversations comprised of multiple messages or to MOC messages about the applicant
b.    undertaking search and retrieval of documents based on the above scope by examining MOC messages identified during the course of the IC review to determine if further documents can be found.
5. The ATO must then provide a response to the applicant in accordance with s 26 of the FOI Act in relation to the documents it has identified via its further searches within 30 days of receipt of this decision.
[6] For the purposes of completeness, it should be recorded that the acronym ‘MOC’ means Microsoft Office Communicator.
CONSIDERATION
Subsection 41(2) of the AAT Act provides as follows:
The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.
When one considers the language used in s 41(2), it is apparent that the power reserved by such section requires the Tribunal to form an opinion that the making of the orders sought is desirable, taking into account the interests of any persons who may be affected by the review. The task that the Tribunal is required to undertake is to identify for itself and consider the relevant interests of the parties concerned. Failure to do so will mean that the Tribunal cannot form the required opinion. In undertaking this task, the Tribunal almost invariably has to address competing, or potentially competing concerns or interests.[7]
[7] Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130, 142-3 [49]-[51].
An assessment of the competing or potentially competing interests of the parties must be undertaken by reference to the statutory scheme pursuant to which the reviewable decision was made. In this case of course, it is the provisions of the FOI Act. For the purposes of an interlocutory application such as this, a wholesale excursion into the regime created by the FOI Act is not necessary. However, it can be said that underpinning the scheme created by that Act is the right of access created by s 11. It may well be said to be a ‘fundamental element’. That section provides that subject to the Act, every person has a legally enforceable right to obtain access in accordance with its provisions to a document of an agency, other than an exempt document, or an official document of a Minister, other than an exempt document.
The general objects of the FOI Act contained in s 3 should also be briefly referred to. Those objects include giving the Australian community access to information held by the government of the Commonwealth. Further objects include the promotion of Australia’s representative democracy by contributing towards increasing public participation in Government processes, and amongst other things, increasing scrutiny, discussion comment and review of the Government’s activities. Finally, there is also an expressed intention in s 3 of the FOI Act that the functions and powers given by that Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
The competing interests between the parties in this application were carefully articulated in their submissions. When considering an application for a stay order pursuant to s 41(2) of the AAT Act, the Tribunal should not conduct a ‘mini trial’ or, as it is sometimes referred to, a ‘preliminary trial’, of the issues in dispute. Rather, its task is to determine whether there are facts and circumstances, which if established at a substantive hearing, would provide the basis for the applicant’s success in the final hearing, or if there are matters of law which are established could also lead to such a conclusion.[8]
[8] Levi v Companies Auditors and Liquidators Disciplinary Board [2013] FCA 719, 9 [30]-[32] per Farrell J.
The Commissioner’s counsel stated that he sought to be excused from formally attending to the obligations created by paragraphs 4 and 5 of the reviewable decision. He submitted it was an entirely orthodox request in the context of a s 41(2) stay application, the object being to preserve the subject matter of the hearing. It was contended that the requirements of paragraphs 4 and 5 of the reviewable decision were not reasonable steps for the Commissioner to undertake for the purposes of the FOI Act. The Commissioner’s counsel submitted that the prejudice to the Commissioner, if the stay was not rendered, would be absolute by having to take steps that the Commissioner wishes to be excused from undertaking. If the stay sought is not granted, the subject matter of review effectively falls away entirely in that the matter would have no utility. It was, therefore, submitted that the application was entirely uncontroversial. The Commissioner did concede that there would be prejudice to the respondent having to wait for the Tribunal to rule on the applicant’s application before the Commissioner takes further steps in consequence of the FOI application.
The applicant contended that if the operation of the relevant parts of the reviewable decision are not stayed, the application for review would be rendered nugatory. This would be because the Commissioner would be required to undertake the very steps that by this application, it seeks to be relieved from undertaking. In submissions, counsel for the applicant also described such a contention in terms of the subject matter of the review being effectively destroyed.
Further emphasis was placed by the applicant, in this setting, on what it contended was the desirability of preserving the status quo. This is a ground frequently relied upon by applicants to justify the exercise of the discretion reserved in s 41(2) of the AAT Act to the Tribunal. Reference was made to a passage from the decision of Deputy President Forgie in Matthews and Australian Securities and Investments Commission & Ors.[9] In the passage concerned, the Deputy President highlighted that one of the purposes of the power contained in s 41(2) is to secure the effectiveness of the hearing. In this context, the applicant contended that because the subject matter of the review would be destroyed if the stay is not granted, the effectiveness of the hearing could not therefore be secured.
[9] [2010] AATA 649, 211 [482].
Another public interest consideration submitted by the applicant Commissioner was that if a stay is granted, it would have the effect of maintaining public confidence in the efficacy of the Tribunal’s review jurisdiction as contemplated by s 41(2). Further, the Commissioner submitted that the effective management of public resources means that such resources are not being expended unnecessarily under the FOI Act and in circumstances where the Tribunal were to subsequently rule in the Commissioner’s favour.
Another matter highlighted by the applicant in its oral submissions to the Tribunal was in response to a contention made by the respondent, about which more will be said later. That contention concerned the contents of nine spreadsheets attached to an email from a Principal Lawyer, General Counsel of the applicant dated 19 August 2022 to an employee of the Office of the Australian Information Commissioner.[10] It should be recorded that those spreadsheets, although attached to the email, have not been included in the T documents. Mr Davidson, who appeared for the applicant, stated that the effect of the reviewable decision is that it requires the applicant to interrogate individually each of the thousands of rows in such spreadsheets. To require the applicant to undertake this step was, on its face or in all circumstances, unreasonable. This fact alone, it was contended, raises an arguable case before the Tribunal so it could not be said that the applicant has no reasonable prospect of success.
[10] Document T11 of the T documents.
Ms Bazzo, a director of the respondent, made careful and reasoned submissions resisting the applicant. Additionally, Ms Bazzo, on 28 August 2023, following the hearing of this application, lodged written submissions opposing the application. She readily conceded that the Tribunal should not conduct a mini hearing in an application of this type. She, however, highlighted what she submitted were other competing interests in the respondent’s favour that overall should persuade the Tribunal not to exercise its discretion to grant a stay in favour of the applicant.
Ms Bazzo referred the Tribunal to the well-known decision of Downes J in Scott v Australian Securities and Investments Commission (‘Scott’).[11] Ms Bazzo referred to the six matters identified in that decision that can be taken into account when considering a stay application.
[11] (2009) 51 AAR 114 (‘Scott’).
Much emphasis was placed by Ms Bazzo, as previously noted, on the contents of an email of 19 August 2022 from a Principal Lawyer, General Counsel of the applicant to an officer of the Office of the Australian Information Commissioner. She contended that a careful examination of the contents of this email revealed several things in favour of the respondent. Firstly, the email appears to demonstrate that many of the searches contemplated by paragraph 4 of the reviewable decision have already been completed by the applicant. Further, she submitted that the reference by the Principal Lawyer in the email to the fact that the documents were ‘not large’ entitled one to conclude that in effect the task of conducting a search of them as required by paragraph 4 of the reviewable decision was not as significant an undertaking as the applicant submitted.
This contention was further advanced by Ms Bazzo, referring to another email of
[12] The email concerned is document T11.1 of the T documents.
23 June 2022 from a ‘Senior Criminal Investigator’ from the applicant to another officer.[12] In that email the writer stated that ‘the process is fairly straight forward.’ It was further stated that the ‘MOC database (DB) sits on a standalone USB store.’ Finally, the letter stated, ‘The whole process took [an officer of the ATO was named in this portion of the FOI request but they will not be reproduced in these reasons for the purposes of privacy] about 4 hours to produce the totality of the data you received.’ Once again, it was submitted that this is further evidence that the task required of the applicant by paragraph 4 of the reviewable decision was not as time-consuming or difficult as contended for by the applicant.
The submissions made by Ms Bazzo concerning the contents of the email of 23 June 2022 were also buttressed, or perhaps corroborated by reference to some paragraphs in the reviewable decision itself. Specifically, she referred to paragraph 38 where the Information Commissioner stated that based on the submissions and the evidence of searches undertaken in response to a notice under s 55V of the FOI Act, she did not consider that the applicant had done all that could reasonably be required of it to find the documents in question. In particular, she found that the applicant had failed to take the reasonable step of examining the MOC messages it compiled as a result of its keyword searches, to identify and extract communications within the scope of the respondent’s request. Therefore, to this extent it had interpreted the scope of the respondent’s request too narrowly.
Ms Bazzo then referred to relevant public interest considerations that in her submission weighed in Fastbet’s favour. There were two limbs to this consideration advanced by her. The first limb, once again referring to the emails previously identified, addressed the diversion of public resources argument. Ms Bazzo submitted that the applicant has already, in part, undertaken the steps that paragraph 4 of the reviewable decision required it to do and in reality, further compliance would require comparatively little further attention on the applicant’s part. In this setting she also emphasised that public interest considerations including community confidence and trust, are served when the objects of the FOI Act and its purpose are collectively taken into account. Given the legally enforceable right that a person has to obtain access to documents of an agency or a Minister, there are compelling reasons why compliance with paragraphs 4 and 5 of the reviewable decision should be required forthwith.
The second limb revolved around what she described as ‘public confidence’ and ‘integrity issues that build public confidence.’ She submitted that transparency in the conduct of an administrative process such as this one is fundamental. Once again, she referred to the findings of the Information Commissioner. In particular, that she was not satisfied that the applicant had taken all reasonable steps to find documents falling within the scope of the respondent’s request and was therefore unable to be satisfied that the documents could not be found or do not exist for the purposes of s 24A of the FOI Act. Reference was also made again to the objects of the FOI Act. In particular, it was submitted that the public interest is not served by an agency expending resources for almost six years opposing the FOI request.
The respondent then turned to other consequences or competing interests that Ms Bazzo submitted were in the respondent’s favour. She referred to considerations of ‘procedural fairness’. There were several grounds relied upon. It was contended that the application lodged with the Tribunal did not contain an adequate statement of reasons identifying the grounds, or alternatively, the facts, circumstances or things justifying or supporting the application. Additionally, it was contended that the matter should be looked at with some degree of realism. The FOI application was, as noted earlier, on 16 November 2017, almost six years ago. The time it will take for this application to be finalised is not certain.

Finally, the respondent referred to the ‘financial consequences’ for the respondent. These financial consequences were said to arise, from what the Tribunal gleans from such submissions, due to enforcement steps or proceedings having been taken by the Commissioner against it. Ms Bazzo explained that there had been significant financial consequences which had deprived the respondent of a percentage of funds arising from the sale of 130 properties together with difficulties (including further costs) that it encountered in discharging mortgages over those properties by reason of the Commissioner’s enforcement actions.
No explanation was provided to the Tribunal for the remarkable lapse of time between the internal review decision made on 24 May 2018, and the reviewable decision some five years later on 5 June 2023. This delay is simply extraordinary, and it is difficult for the Tribunal not to have considerable sympathy for the respondent being subjected to such a delay.
However, the Tribunal is persuaded by the applicant’s contention that the status quo should be preserved. The submissions made by the applicant were that it has taken all reasonable steps to find the documents concerned which are the MOC messages, which is contrary to the conclusions expressed by the Information Commissioner in the reviewable decision. It is the live issue in this application. If a finding is made at a subsequent hearing of this application that indeed, all reasonable steps have been taken to find the documents concerned, the applicant agency may refuse the FOI request under s 24A of the FOI Act.
The respondent contended that the applicant has not provided any information in support of its application or identified the grounds of, or basis on, why it considers that the reviewable decision was incorrect. It should be repeated again that the Tribunal cannot conduct a ‘mini trial’ of the matter in an application such as this. However, the Tribunal considers that there were sufficient grounds identified in the T documents before the Tribunal. Further, it ought to be able to accept the submissions made by the representatives in the hearing of the application concerning this matter for the purposes of determining whether or not to grant a stay of the operation of the reviewable decision.
The force of the arguments advanced by the respondent that either many of these searches contemplated by paragraph 4 of the reviewable decision have already been completed or alternatively that the emails referred to by it establish that the search process is relatively straightforward, are readily acknowledged.
The conflict between these two positions cannot be resolved in an interlocutory hearing such as this. It is ultimately a question that would have to be determined by the Tribunal at a final hearing of the application. This highlights the fact as noted above that the Tribunal cannot conduct a mini trial or preliminary hearing of these essential factual disputes at this time.
The Tribunal is persuaded that if the operation of paragraphs 4 and 5 of the reviewable decision are not stayed by an order of the Tribunal under s 41(2) of the AAT Act, there is a real possibility that the application for review would be rendered nugatory. Having considered the interests of the parties it is of the opinion that it is desirable to grant such an order. It is also in this context appropriate to grant a stay order for the purpose of securing the effectiveness of the hearing and determination of the application for review. If the applicant is required to comply with the provisions of those paragraphs and does so, there would seem little point to the application for review continuing.
The public interest considerations advanced by the respondent should be considered. Whilst it is acknowledged that there has already been a significant expenditure of public resources in addressing the FOI request made by the respondent, both by the applicant and the Office of the Australian Information Commissioner, the Tribunal is not persuaded that this sufficiently justifies refusing the application for a stay order. Largely, this is because of the conflict identified above between the position of the parties concerning whether or not reasonable steps have been undertaken to find the documents concerned by the applicant agency. The applicant has conducted some searches which the FOI Act required it to undertake by virtue of the respondent’s legally enforceable right of access to documents contained in s 11 of the FOI Act and in pursuit of the objects in s 3. Those objects include, among other things, the provision of a right of access to documents. Taking into account that the applicant has conducted at least some searches, it cannot be said that there is an unreasonable diversion of public resources that might be considered to be contrary to the public interest, or public interest principles, as contemplated by authorities such as Scott. The Tribunal is mindful, as noted earlier, of both the legally enforceable right of access to documents in s 11 and the objects enumerated in s 3 of the FOI Act. It is a factor that weighs significantly in favour of the respondent. However, in the exercise of the discretion conferred by s 41(2) of the AAT Act, the Tribunal considers preserving the status quo in this instance must assume primacy.
Once again, the Tribunal acknowledges the persuasiveness of the ‘public confidence’ and ‘integrity issues that build public confidence’ considerations with respect to the second limb of the respondent’s contention. However, it does not consider that these public interest considerations on this occasion override or outweigh the question of whether or not the applicant has undertaken all reasonable steps to locate the documents concerned, which can only be resolved at a final hearing of the application. The Tribunal also considers that it does not, in this application, swing the pendulum against preserving the status quo for the purpose of securing the effectiveness of the hearing and determination of it.
In a sense, the public interest as articulated in this contention by the respondent, will be served by the scrutiny that the applicant will be placed under during the conduct of the final hearing of this application. It should also perhaps be observed that the Tribunal does not consider on the material before it that there are matters of public confidence or integrity that necessarily arise as a result of conduct on the part of the applicant. The delay in resolving the review by the Office of the Australian Information Commissioner is lamentable but it does not seem on the material presently before the Tribunal that the applicant should shoulder the blame for such delay.
On the question of procedural fairness raised by the respondent, whilst understandable, it is not considered to be determinative, or otherwise fatal to the application for the grant of a stay order. Well before the hearing the applicant will be required to prepare, lodge with the Tribunal and serve a copy on the respondent a Statement of Facts, Issues and Contentions in which all the grounds upon which it will rely at the final hearing of the application are articulated. Also, with respect to this aspect of the respondent’s submissions, the Tribunal is persuaded by the Commissioner’s contention that s 61A of the FOI Act modifies the operation of the AAT Act to proceedings by way of review by the Tribunal under Part VIIA of that Act. Subsection 61A(2) of the FOI Act provides that the agency who made the Information Commissioner reviewable decision is taken to have complied with the obligation under paragraph 37(1)(a) of the AAT Act if it includes with the T documents a copy of the decision in relation to which the application for review has been made.
In any event, the Tribunal understands the core elements of the applicant’s contention which is that reasonable searches have been undertaken and therefore s 24A of the FOI Act applies. This contention and the grounds relied upon by the applicant in support of it is apparent from an examination and consideration of the contents of some of the T documents which included submissions from the applicant to the Information Commissioner. By way of example, document T13, being an email from the applicant’s Principal Lawyer, General Counsel, to the Information Commissioner on 1 November 2022, explains in considerable detail why the Commissioner adopts the position he does.[13] The grounds relied upon by the Commissioner in those various documents leave the reader in no doubt why it is submitted that reasonable searches have been conducted. Once again, this question can only be resolved by a final hearing and determination of the application.
[13] There are also extensive submissions made by the applicant to the Information Commissioner in documents T7.1, T8, T10, T11, T12, and T14. Several of these documents are email exchanges concerning the issue of whether or not reasonable searches had been performed. They also contain extensive particulars explaining why the Commissioner considers that all reasonable searches, amongst other things, have been undertaken in response to the FOI request.
With respect to the ‘financial consequences’ for the respondent, the Tribunal only had the benefit of submissions made by Ms Bazzo on behalf of it. In particular, the contents of paragraphs 21 to 27 of the respondent’s written submissions concerning the financial consequences to it are referred to and have been taken into consideration by the Tribunal. The applicant took enforcement proceedings against the respondent which included a procedure known as a ‘Security Bond Demand’ (‘SBD’). Further, consequences include the fact that the applicant holds a significant sum of money arising from the proceeds of sale of settlement by the respondent of 130 residential lots between 11 December 2017 and
24 August 2023 and that it has also incurred additional transactional costs arising from enforcement action taken by the applicant against it. Whilst this may be so, without more the Tribunal is unable to conclude that implementation of paragraphs 4 and 5 of the reviewable decision would alleviate or otherwise prevent or perhaps ameliorate those financial consequences. At best, if further searches reveal the existence of additional documents of the categories identified in the FOI request, they would be produced to the respondent. It is not apparent that if any such documents were located and produced to the respondent that they would in some way limit or relieve the respondent from the stated financial consequences. It should also be observed that it was not contended by the respondent that any of the enforcement steps undertaken by the applicant against it, including the SBD procedure, were in any way improperly taken, or perhaps an abuse of process that might entitle it to redress in a court of competent jurisdiction. There is, therefore, simply insufficient evidence for the Tribunal to conclude that this is a consideration that weighs against granting the stay order sought by the applicant. No doubt if any further documents are produced following the final hearing of this application the respondent will take whatever action as it may be advised.
By reason of the foregoing matters, the Tribunal has formed the opinion that the making of an order under s 41(2) of the AAT Act is desirable for the purpose of securing the effectiveness of the hearing and determination of the application for review.
ORDERS
The Tribunal orders as follows:
That pursuant to s 41(2) of the AAT Act the operation or implementation of paragraphs 4 and 5 on page 2 of the reviewable decision made on 5 June 2023 be stayed until the hearing and determination of the application for review.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

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Associate
Dated: 12 September 2023

Date of interlocutory hearing: 24 August 2023

Counsel for the Applicant:

Solicitors for the Applicant:

Mr Justin Davidson

Australian Government Solicitor

Advocate for the Respondent: Ms Tina Bazzo