Forestry Tasmania v Ombudsman (No 2) - [2010] TASSC 52

[2010] TASSC 52

COURT: SUPREME COURT OF TASMANIA

CITATION: Forestry Tasmania v Ombudsman (No 2) [2010] TASSC 52

PARTIES:  FORESTRY TASMANIA
  v
  OMBUDSMAN
  BOOTH, Kim, MHA
  SOUTHERN CROSS TELEVISION (TNT 9) PTY LTD

FILE NO/S:  216/2010
DELIVERED ON:  11 November 2010
DELIVERED AT:  Hobart
HEARING DATE:  4 October 2010
JUDGMENT OF:  Porter J

CATCHWORDS:

Procedure – Costs – Jurisdiction – Persons not parties to proceedings – Persons acting as amici curiae – Power to award costs against an amicus curiae – Entitlement of an amicus curiae to costs – Whether applicant for judicial review entitled to costs against Attorney-General acting as amicus curiae where no proper contradictor in the proceedings – Whether Attorney-General entitled to the costs of the costs application.
Rushby v Roberts [1983] 1 NSWLR 350, considered.

Re Medical Assessment Panel; ex parte Symons (2003) 27 WAR 242; Attorney-General (Western Australia) v Marquet (2003) 217 CLR 545, referred to.

Aust Dig Procedure [551]

REPRESENTATION:

Counsel:
             Applicant:  J R McDonald
             First Respondent:  (Submitted to the Court's jurisdiction)
             Second Respondent:  (Submitted to the Court's jurisdiction)
             Third Respondent:  (Submitted to the Court's jurisdiction)
             Attorney-General:  P Turner
Solicitors:
             Applicant:  John McDonald
             First Respondent:  In person
             Second Respondent:  Fitzgerald and Browne
             Third Respondent:  In person
             Attorney-General as amicus curiae        Director of Public Prosecutions

Judgment Number: [2010] TASSC 52
Number of paragraphs: 31

Serial No 39/2010
File No 216/2010

FORESTRY TASMANIA v OMBUDSMAN, KIM BOOTH MHA,
SOUTHERN CROSS TELEVISION (TNT 9) PTY LTD (No 2)

REASONS FOR JUDGMENT PORTER J

11 November 2010

The issue

The applicant ("FT") applied for judicial review of a decision of the Ombudsman made following a review carried out pursuant to the Freedom of Information Act 1991 ("the Act"). The Hon Kim Booth MHA had applied to FT for information relating to commercial arrangements between it and Southern Cross Television ("TNT") relating to the "Going Bush" television program. Certain information was released with some material deleted. This was claimed to be exempt on the basis that it fell within ss31 and 32 of the Act, being information of a business, commercial or financial nature that would be likely to expose TNT or the agency to competitive disadvantage. Mr Booth requested an internal review of that decision which was upheld. In May 2009, Mr Booth applied to the Ombudsman for a review. On 10 March 2010, the Ombudsman concluded that none of the information at issue was exempt from release and that it should be released to Mr Booth in response to his request.

Both FT and TNT made submissions to the Ombudsman upon his review, as did Mr Booth. However, in the application for judicial review, TNT and Mr Booth each filed a notice submitting to any order which the Court or a judge may make upon the application. Quite properly, the Ombudsman had done likewise. When the matter came on for hearing, counsel sought leave to appear for the Attorney-General as amicus curiae. In the absence of a proper contradictor, and with the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] TASSC 52
Decision Date: 11 November 2010

CaseChat Overview and Summary

In this case, the plaintiff, Forestry Tasmania, sought judicial review of a decision made by the Ombudsman. The defendant, the Ombudsman, had issued a report that was critical of Forestry Tasmania's practices. The Attorney-General intervened in the proceedings as an amicus curiae to defend the Ombudsman's report, while Forestry Tasmania was unable to find an opposing party to contest the report. The matter was heard in the Federal Court of Australia. The central legal issues revolved around the appropriateness of awarding costs to and from an amicus curiae in judicial review proceedings and whether the applicant was entitled to costs against the Attorney-General when there was no proper contradictor present.

The court addressed the procedural complexities of awarding costs in such circumstances. It considered whether an applicant for judicial review could be awarded costs against an amicus curiae, particularly when the amicus curiae, in this case, the Attorney-General, was defending the decision of a public officer. The court also examined whether the Attorney-General was entitled to recover the costs of the costs application from Forestry Tasmania. The court concluded that an applicant for judicial review is not entitled to costs against an amicus curiae when there is no proper contradictor in the proceedings. Furthermore, the court found that the Attorney-General was not entitled to the costs of the costs application. The reasoning was based on the fact that the applicant had not succeeded in their application for costs against the Attorney-General.

In light of these findings, the court dismissed Forestry Tasmania's application for costs against the Attorney-General and denied the Attorney-General's application for the costs of the costs application. The court emphasised the importance of identifying a proper contradictor in judicial review proceedings to ensure fairness and clarity in the awarding of costs.

Orders