Matson and Attorney-General’s Department (Freedom of information)

[2021] AATA 788

Matson and Attorney-General’s Department (Freedom of information) [2021] AATA 788 (7 April 2021)

Division: General Division         

File Number(s):       2020/2703

Re:Baron Matson  

APPLICANT

Attorney-General’s DepartmentAnd  

RESPONDENT

DECISION

Tribunal:Deputy President Gary Humphries AO

Date:7 April 2021

Place:Canberra

The Tribunal DIRECTS, pursuant to section 35(4) of the Administrative Appeals Tribunal Act 1975, that the publication or other disclosure of those parts of the Tribunal Documents filed by the Respondent on 23 June 2020, which are bordered in red and contained on the following pages (the Confidential Information), be prohibited:

·T17(a) at pages 1 - 12;

·T19 at page 1;

·T20(a) at pages 7 - 9;

·T26(a) at page 1;

·T35 at page 1;

·T38(a) at pages 6 – 14 and pages 18 - 20;

·T39(a) at pages 1 - 4;

·T39(b) at pages 2 - 4;

·T40 at page 1;

·T109(g) at page 1 - 3; and

·T121(a) at page 1.

1.Disclosure of the Confidential Information be restricted to:

• Members and staff of the Tribunal;

• staff of the Tribunal’s transcription service provider;

• the Respondent and its’ representatives; and

• officers of the Attorney-General’s Department.

2.Any references to the Confidential Information in evidence or submissions, filed by the Respondent or made by the Respondent during the hearing, be restricted to:

• Members and staff of the Tribunal;

• staff of the Tribunal’s transcription service provider;

• the Respondent and the Respondent’s representatives; and

• officers of the Attorney-General’s Department.

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Deputy President Gary Humphries AO

Catchwords

PRACTICE AND PROCEDURE – application for a confidentiality order – application for release of documents from implied undertaking – application for adjournment of interlocutory proceedings – where documents are exempt from production under s 33 of the Freedom of Information Act 1982 – where Tribunal cannot disclose material which may ultimately be found to be an exempt document – where refusal to make confidentiality order would obviate the purpose of substantive application – confidentiality order granted – where release from implied undertaking would have no utility – release from implied undertaking refused – application for adjournment refused

Legislation

Administrative Appeals Tribunal Act 1975

Freedom of Information Act 1982

REASONS FOR DECISION

Background

1. Mr Baron Matson has several applications before the Tribunal in respect of documents under the Freedom of Information Act 1982 (the FOI Act). Various Federal Government departments and agencies are respondents to those applications. In the present proceedings the Attorney-General’s Department (the Department) is the respondent. Mr Matson is also an appellant in related proceedings before the Federal Court of Australia.

2. In the course of the present Tribunal proceedings three interlocutory applications were before the Tribunal, two by Mr Matson and one by the Department. As is set out below, some of those applications had, or potentially had, a bearing on one of the matters he had brought before the Federal Court. The relationship between the Tribunal proceedings and the Federal Court proceedings is discussed in paragraph [17] below.

3. It came to the Tribunal’s attention that his Honour Justice Rangiah was listed to hear an application from Mr Matson for an order for discovery on 28 August 2020. The Tribunal indicated to the parties some weeks before this date that, due to the overlap of the issues in the Tribunal and Federal Court proceedings, it would deal with Mr Matson’s interlocutory applications prior to the Federal Court hearing on 28 August 2020.

4. The Tribunal convened a hearing by telephone on 27 August 2020 to hear the interlocutory applications. Pursuant to protocols adopted by the Tribunal to deal with the coronavirus pandemic, almost all hearings in the Tribunal at that time were conducted remotely. Those arrangements were also necessary in this case because Mr Matson has been sentenced to a term of imprisonment and is incarcerated in the Arthur Gorrie Correctional Centre in Queensland. Accordingly both parties appeared by telephone at the hearing.

5. The three interlocutory applications before the Tribunal at the hearing were:

   · An application made by the Department on 23 June 2020 for directions pursuant to s 35(4) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) prohibiting the publication and disclosure of certain documents (the confidentiality application);

   ·     An application made by Mr Matson on 12 July 2020 for “leave to be released from the implied undertaking referred to in paragraphs [5.2] to [5.4] in Part 5 of the Freedom of Information Practice Directions” (application for release from the implied undertaking);

   ·     An application made by Mr Matson on 18 July 2020 for directions that the Department “re-assess their records and complete to the best of their ability and to the extent possible the remaining two ‘annotated schedules of documents’ for FOI decisions FOI 18/023 and FOI 18/082” (the annotated schedules application).

6. At the hearing, the Tribunal refused the application for release from the implied undertaking but granted the confidentiality application. In the course of the hearing Mr Matson made a further application, for the adjournment of the hearing in relation to these two applications. The Tribunal refused this application (the adjournment application).

7. Subsequent to the hearing on 27 August 2020, Mr Matson has filed an application in the Federal Court appealing, in essence, the decisions made by the Tribunal in respect of the confidentiality application, the application for release from the implied undertaking and the adjournment application. Those Federal Court proceedings bear the file number QUD360/2020. It is convenient, therefore, that the Tribunal provide the following reasons for the decisions it made in relation to the three matters currently before the Federal Court.

   The confidentiality application

8. The Department sought a direction under s 35(4) of the AAT Act prohibiting publication and disclosure of the redacted portions of 11 confidential documents that otherwise make up the documents produced to the Tribunal pursuant to s 37 of the AAT Act. It submitted:

   1. The Respondent has significantly narrowed the scope of the material over which it seeks confidentiality orders since it first made this application on 23 June 2020. That application was made in respect of 20 documents, in full.

   2. Confidentiality is now sought over 11 documents, and only certain discrete parts of those documents are sought to be redacted. The Respondent submits that the substance of those 11 documents remain fully comprehensible, despite the redactions.

   3. Orders are sought over information that is, or replicates, material in issue in this proceeding which the Respondent claims is exempt on the basis that disclosure could reasonably be expected to cause damage to the international relations of the Commonwealth, or would divulge information or matters communicated in confidence by or on behalf of a foreign government, authority or international organisation to the Commonwealth: s 33 of the FOI Act. The material includes information that would reveal the degree and type of communication between the Respondent and overseas enforcement agencies.

   4. In determining whether to make an order under s 35(4) of the AAT Act, the Tribunal must have regard to the necessity of avoiding the disclosure to the Applicant of exempt matter contained in a document: s 63(1)(a)(i) of the FOI Act. In particular, given the proceedings relate to a document that is claimed to be an exempt document under s 33 of the FOI Act, the Tribunal must give weight to a submission made in the previous paragraph: s 63(1)(b).

9. This claim that the material over which the confidentiality was sought included material of a kind that would expose the degree and type of communication between the Department and an overseas enforcement agency was supported in a witness statement made by Mr Anthony Catt, Director of the Freedom of Information and Privacy Section in the Department.

10. Mr Matson submitted that he was unable to determine whether s 33 of the FOI Act had been properly applied in this case unless he, or at least his legal representative, had seen the documents over which the order was sought. He argued:

    …in my submission, whether or not the section 33 exemption is appropriate or being utilised in an inappropriate context can only be determined if counsel can actually view the documents themselves. So it’s my submission that they should be available for viewing by the tribunal and by the – and an appointed legal representative that’s able to be engaged. I’m not suggesting that I can see the contents of those documents if there’s a legitimate claim under section 33.

    My problem is, is that there’s been, in my submission, an excessive utilisation of section 33 and there have been other documents throughout the various FOI decisions where the respondent has previously made selective – well, selective redactions of section 33 documents that prima facie would fall into that international relations.

11. Dr Hilly, representing the Department, contended as follows:

    …the Department doesn’t accept that argument or doesn’t agree with that proposed resolution or that proposed course of action simply because, one, it goes towards the substance of the matter that needs to be determined at the final hearing. So the exemption is claimed on the basis that disclosure to anybody is contrary to section 33 of the FOI Act, whether that be Mr Matson, his legal representative or the public at large. So on that basis we would say no.

    But further I want to note that at the moment what we’re talking about in terms of the section 35 application that’s currently before the tribunal is only very discrete parts of the T documents and we would say that the nature of the redaction is such that it doesn’t prevent Mr Matson from properly considering those documents and the substance of those documents.

12. The Tribunal granted the application sought by the Department under s 35(4), for the following reasons. Section 33 of the FOI Act provides:

    A document is an exempt document if disclosure of the document under this Act:

    (a)  would, or could reasonably be expected to, cause damage to:

    (i)  the security of the Commonwealth;

    (ii)  the defence of the Commonwealth; or

    (iii)  the international relations of the Commonwealth; or

    (b)would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organization to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.

13. Section 63 of the same Act provides:

    (1) In determining whether the Tribunal is satisfied that it is desirable to make an order or orders under subsection 35(2), (3) or (4) of the Administrative Appeals Tribunal Act 1975, the Tribunal must:

    (a) have regard to:

    (i) the necessity of avoiding the disclosure to the applicant of exempt matter contained in a document to which the proceedings relate; and

    (ii) the necessity of avoiding the disclosure to the applicant of information of the kind referred to in subsection 25(1); and

    (b) where the proceedings relate to a document that is claimed to be an exempt document under section 33—give particular weight to a submission made by an agency or a Minister that it is desirable to make the order or orders under subsection 35(2), (3) or (4) of the Administrative Appeals Tribunal Act 1975 because disclosure of the document:

    (i) would, or could reasonably be expected to, cause damage to the security, defence or international relations of the Commonwealth; or

    (ii) would divulge information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organisation to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.

14. The issue to be determined in the substantive proceedings presently before the Tribunal is whether the material to which Mr Matson seeks access is exempt from disclosure pursuant to s 33. Section 63 makes it clear that, in considering an application for a confidentiality order, the Tribunal must avoid disclosing material which may ultimately in those proceedings be found to be an exempt document.

15. This is precisely the situation the Tribunal confronted on 27 August. In the substantive application the Tribunal may ultimately find that the documents in question are not exempt documents, but to refuse to make a confidentiality order then over those documents, or parts of documents, which it is claimed are protected from disclosure by s 33 would be to obviate the whole purpose of the substantive application. Clearly, if a respondent claims that a document is exempt from disclosure, the document must remain undisclosed to the party seeking it unless and until the proceedings are finally resolved in the applicant’s favour.

16. Nor do I accept Mr Matson’s submissions that he and his legal representative must be treated differently for these purposes. Under ordinary principles of a counsel/client relationship, disclosure to counsel is disclosure to his or her client.

    Application for release from the implied undertaking

17. The Department opposed Mr Matson’s application for release from the implied undertaking on the basis that this would be inappropriate in the circumstances, and would serve to undermine the processes of the Federal Court, where there was a pending application for discovery made by him over the same material from which he sought release from the undertaking. The Department made the following submissions:

    1. The Applicant seeks the release from the implied undertaking in respect of all documents lodged by the Respondent under s 37 of the AAT Act, including documents subject to the Respondent’s confidentiality application.

    2.    The Applicant says that he wants to use the documents in his ongoing Federal Court of proceedings).

    3.    The Applicant says that, if released from the implied undertaking, he will seek to file those documents “as evidence in support of [his] arguments that claim the surrender decision made on 1 February 2019 by the Acting Attorney General was made on incomplete information and not according to law”. He says that the documents “are directly relevant to the procedures undertaken by the Department in 2018 while processing my FOI requests” and will only be used in the Federal Court proceedings. He also notes that “the documents will only be used by myself and the Respondent (the Attorney General) and the Court”.

    4. The implied undertaking requires that where one party to litigation is compelled to disclose documents or information, the party obtaining that disclosure cannot, without leave, use them for any purpose other than that for which they were given unless they are received into evidence. The implied undertaking applies to the documents obtained during proceedings of the Tribunal, including with respect to documents filed with the Tribunal and given to the Applicant pursuant to s 37 of the AAT Act.

    5.     A party may be released from the implied undertaking as to confidentiality in special circumstances. For special circumstances to exist there must be “a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present”. The factors for the Tribunal to consider in determining whether there are special circumstances include:

    othe nature of the documents;

    othe circumstances under which they came into existence;

    othe attitude of the author of the document and any prejudice the author may sustain;

    owhether the documents pre-existed the litigation or were created for that purpose and therefore expected to enter the public domain;

    othe nature of the information in the document;

    othe circumstances in which the document came into the hands of the Applicant for leave;

    oif sought to be used in other proceedings, the likely contribution of the document in achieving justice in the second proceeding.

    6.    The onus falls upon the moving party to establish that there are special circumstances.

    7.    The Applicant seeks to use the documents in the Federal Court proceedings.

    8.    The First Federal Court Proceeding was heard on 18 November 2019 and is currently reserved before his Honour Justice Rangiah. On 25 June 2020 Rangiah J dismissed an application by the Applicant to reopen the matter or to make further orders for discovery.

    9.    The Applicant has made six further interlocutory applications in the First Federal Court Proceeding (on 29 June, 30 June, 10 July, 2 August and 19 August 2020), including seeking orders for further discovery in that proceeding.

    10.  By his interlocutory application made on 29 June 2020 in the First Federal Court Proceeding, the Applicant seeks discovery of the documents the subject of the Respondent’s Confidentiality Application, and “all document, whether electronic or hardcopy, that are in the actual or constructive possession of the Attorney-General’s Department that are in relation to…all matters including…FOI matters”.

    11.  The Applicant has filed a new originating application dated 28 July 2020 to the Federal Court. As part of the interlocutory relief sought, the Applicant seeks un-redacted copies of documents which form part of the subject matter of the Tribunal proceedings and an un-redacted copy of the confidential documents filed in these proceedings.

    12.  These applications are listed for hearing before Rangiah J on 28 August 2020.

    13.  In light of the matters above, the Respondent submits that it would undermine the processes of the Federal Court for the Applicant to be released from the implied undertaking in circumstances where the documents over which the release is sought are currently the subject of an application for discovery.

    14. Further, the Respondent has opposed, and continues to oppose, the Applicant’s application for further discovery in the Federal Court Proceedings. The Respondent’s position is that the documents, including the documents produced pursuant to s 37 of the AAT Act have no relevance to the First Federal Court proceedings.

    15.  While the parties in both the Tribunal proceedings and the Federal Court proceedings are the same, given the limited relevance of the documents to the Federal Court Proceedings, disclosure to the Applicant is not required in order to do justice between the parties in the Federal Court proceedings. If the Respondent is wrong on its assessment of the relevance of the documents to the Federal Court Proceedings, then this is a question that is more appropriately determined by Rangiah J on 28 August 2020 in the context of the Applicant’s application for discovery of those documents.

    16.  Further, the nature of the documents, including those subject to the Respondent’s confidentiality application, were not created for the purpose of litigation, nor expected to enter the public domain. The documents over which confidentiality is sought would cause, or could be reasonably expected to cause damage to the international relations of the Commonwealth if released at all to the Applicant, let alone released to the Applicant without the protection arising as a result of the implied undertaking.

    17. Finally, the documents have come into the hands of the Applicant by way of the compulsion on the Respondent by operation s 37 of the AAT Act. The Respondent has not sought to obtain any forensic advantage over the use of these documents in the Federal Court Proceedings to the detriment of the Applicant, nor would it due to its view of their lack of relevance to those proceedings.

1. Mr Matson submitted that his application for discovery in the Federal Court the following day would be assisted if he were able to use the documents from his Tribunal proceedings which were subject to the implied undertaking. He argued:

   …I believe that putting forward those documents to his Honour is going to assist in his determination of discovery and that there may be certain documents within the tribunal documents that may be relevant to the Federal Court proceedings in one way or another and that I should be at liberty to utilise those documents if I see it appropriate.

   I don’t see that there would be any sort of prejudice or adverse effect on the respondent in these proceedings. I just see it as really an attempt to frustrate the Federal Court proceedings by limiting the utilisation of the documents to support my application for discovery in the Federal Court.

2. With respect to the submission from the Department that special circumstances for release from the implied undertaking had not been made out, Mr Matson submitted that those circumstances existed because the Department was unable to supply certain documents to the Tribunal which it conceded had previously existed but which were now lost. (The annotated schedules application which the Tribunal considered on 27 August 2020 related to those documents, and Mr Matson’s desire that the Department produce annotated schedules to identify details of the lost documents.) He submitted:

   …I believe that the search records which are the subject of the confidentiality order and make up part of the tribunal documents that I seek to be released from the undertaking in relation to, I believe that they do pertain and are, in fact, necessary in support of the discovery application because Rangiah J is quite simply going to say to me, “Well, what relevance do these documents have?”

   So I need to put some meat on the bones, so to speak, and say, “Well, look, the relevance of these documents is that they’re related to the search records. Here they are in an unredacted or part-redacted format consistent with the direction that’s just been made in relation to it.” And his Honour can then make a decision as to whether or not further discovery orders can be made.

3. With this submission it became apparent that Mr Matson believed that release from the implied undertaking would allow him to use in the Federal Court proceedings the entirety of the documents drawn up and provided to the Tribunal pursuant to s 37 of the AAT Act, including those documents or parts of documents which were subject to the confidentiality order which the Tribunal had just made. Mr Matson persisted in his submission that the release from the implied undertaking would have that effect, notwithstanding the Tribunal’s attempt to disabuse him of that impression.

4. The Tribunal decided to refuse his application for release from the implied undertaking for the following reasons. Firstly, it was clear that release would not have the effect that he apparently sought from it. Documents or parts of documents that are subject to a confidentiality order are not to be supplied to Mr Matson, and therefore he will not “receive” those documents subject to an implied undertaking that he will not use them in other proceedings. “Release” from the implied undertaking in that context is therefore meaningless.

5. Secondly, no special circumstances have been pointed to which would obviate the usual rule that a party not use documents provided to them under compulsion for any purpose other than the purpose for which they were given. The circumstance of relevant documents having been lost, while highly unusual, is not a circumstance that is special in the sense used here, particularly given that the release from the implied undertaking will not cure the problem of the lost documents, for the reasons explained above. Mr Matson was unable to satisfy the Tribunal that anything of value to the proceedings will be achieved by release from the undertaking.

6. Thirdly, and perhaps most compellingly, I accept the submission from the Department that making an order for release from the implied undertaking would have had the potential to undermine the processes of the Federal Court. It is evident that the documents from which the release from the implied undertaking was being sought were the same documents, or substantially the same documents, over which Mr Matson was seeking an order for discovery before Rangiah J. An order releasing him from the implied undertaking had the potential, therefore, to cut across the processes in the Federal Court.

7. The very least that can be said is that such an order would have no utility, in that the same documents are before the Federal Court and it is perfectly capable of determining their fate in the context of Mr Matson’s application for discovery. As Dr Hilly put it at the hearing:

   …the primary point is that Rangiah J is best placed to determine what is relevant to the substantive Federal Court proceedings and that application is set to be heard tomorrow. If his Honour considers that these documents are relevant he will make an order for discovery. If his Honour decides these documents are not relevant then he won’t make the order for discovery and, therefore, no special circumstances would arise in order to provide for a relief from the implied undertaking. That’s in relation to the substantive proceedings in the Federal Court.

   I understand that Mr Matson is also now making an argument that he needs the section 37 documents in order to make good his application for discovery but that is circular in and of itself because the application for discovery is of the section 37 documents. So he can’t say he needs to produce those documents to the court so that then they can be discovered to him.

8. Finally, the Tribunal notes that it is perfectly possible for the question of release from the implied undertaking to be considered again in the future if special circumstances can indeed be demonstrated. Those circumstances were not however demonstrated on this occasion.

   The adjournment application

9. After the Tribunal had determined the confidentiality application, and as it was considering submissions in relation to the application for release from the implied undertaking, Mr Matson made an application that the proceedings in both matters be adjourned to allow him to conduct further research on the questions being considered by the Tribunal. Notwithstanding that I had already determined the confidentiality application, I entertained the application for adjournment in respect of both matters.

10. He expressed this application as a question of procedural fairness, based on two matters in particular. The first was that he had received notice of the interlocutory hearing that day only, he said, approximately 2 hours before the hearing was due to commence. He became aware of the hearing when he was handed written submissions lodged by the Department in relation to the three applications to be considered by the Tribunal in the interlocutory hearing. The second matter was the written submissions themselves; he submitted that he was disadvantaged by the Department having lodged those submissions, and he should be given a similar opportunity, through an adjournment, to make submissions on his own behalf. In relation, in particular, to the application for release from the implied undertaking, he said:

    …if you’re currently minded to make the order to release me from the implied undertaking, I’m asking for the opportunity to provide proper written submissions and to be provided with the relevant case authorities so that I can effectively and properly make out my argument here because it is so critical to the proceedings in the Federal Court…

11. The Tribunal declined to adjourn the proceedings relating to the confidentiality application or the application for release from the implied undertaking. It did, however, offer Mr Matson an adjournment of the annotated schedules application. It declined to provide an adjournment in relation to the first two matters for the following reasons.

12. The late provision of notice to Mr Matson of the hearing on 27 August 2020 was most unfortunate. Ordinarily, the Tribunal would regard a failure to provide a party with proper notice of the hearing as a basis for adjourning that hearing if the party felt disadvantaged in those circumstances. Mr Matson certainly claimed to be disadvantaged here.

13. The following facts are relevant to this situation. First, the Tribunal had made it clear at an earlier interlocutory hearing in the same matter that it wished to resolve the parties’ various interlocutory applications prior to the hearing before Rangiah J on 28 August 2020. It had, however, deferred the interlocutory hearing to consider those applications because it had been advised that the parties were in discussion regarding consent orders in relation to the confidentiality application. It was only when it became clear that agreement on that question had not been reached that, at relatively short notice, the interlocutory hearing was set down for 27 August 2020.

14. An email was sent to both parties on 25 August 2020 advising that the interlocutory hearing would be held at 9.00am on 27 August. A further email was sent to both parties later the same day revising the starting time for the interlocutory hearing to 2:30pm. The email to Mr Matson was in fact addressed to an officer at the correctional centre where he is incarcerated. The Tribunal had been previously advised that Mr Matson was unable to receive emails or text messages directly, but that they should be sent to the relevant officer who would print them and hand them in that form to Mr Matson. Obviously, in these circumstances, communication with Mr Matson was sometimes achieved with difficulty, and the Tribunal had been apprised that sometimes these communications did not reach him, or did not reach him in a timely way. However, there were few alternative means of communication.

15. The Tribunal accepts his claim that the original two email notices of the hearing did not reach him, but that he did receive the Department’s written submissions, alerting him to the hearing only a short time before it was to commence.

16. Notwithstanding the highly unsatisfactory way in which he was advised of the hearing, the Tribunal did not consider that an adjournment was appropriate. In relation to the confidentiality application, the Tribunal is aware that the Department has a responsibility under s 37 of the AAT Act to provide relevant documents within the timeframe provided for in the legislation (generally 28 days). To comply with those provisions the Department needed its application for confidentiality dealt with. For the reasons already given the Tribunal considered it appropriate to adopt the “default” position and grant the application in line with the provisions of s 63 of the FOI Act. However, doing so does not prevent Mr Matson for making a further application at a later stage of these proceedings if some new argument, discovered through further research, becomes apparent to him. Resolving this matter as the Tribunal did on 27 August 2020 therefore occasioned no disadvantage to Mr Matson that cannot be later remedied.

17. In relation to the application for release from the implied undertaking, there appeared to be an urgency which worked against the desirability of an adjournment. Mr Matson had pressed for a decision to release him from the implied undertaking to assist him, as he saw it, in his Federal court proceedings the following day. For the reasons already provided, the Tribunal regarded an order for release from the implied undertaking as having the potential to cut across the proceedings in the Federal Court. Indeed, Mr Matson made it clear at the hearing that if I acceded to his request for an adjournment he would use that fact as the foundation for an application to adjourn the proceedings before Rangiah J the following day. I was cautious about making an order which might prove an inconvenience to his Honour in that context. As already indicated, I considered in any case that no disadvantage would be visited on Mr Matson, by refusing his application, which could not be remedied the following day by his Honour.

18. There was nothing time critical about the annotated schedules application, however, and accordingly I offered to adjourn that application (an offer which Mr Matson ultimately declined).

19. I note that the question of release from the implied undertaking can be revisited if and when arguments present themselves to Mr Matson which would warrant the issue being reopened.

20. Finally, I reject the argument that the provision of written submissions by the Department in some way disadvantaged Mr Matson. Logically, he would have been more disadvantaged had the arguments been presented only orally at the hearing and had he not had two hours or so beforehand to digest them in written form.

    The annotated schedules application

21. For completeness, I will now refer to the fate of the annotated schedules application.

22. As already indicated, the Tribunal offered Mr Matson an adjournment of this application, which he declined. However, as consideration of the application proceeded it became apparent that its resolution required the parties to submit further information which was not readily at hand. Accordingly, the Tribunal adjourned the proceedings at its own initiative and made directions for written submissions to be lodged.

23. Subsequently, however, I understand that the parties reached agreement on the form of annotated schedules, which were then provided to Mr Matson. The Tribunal was not asked to make any further orders in respect of this application.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries, AO.

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Associate

Dated: 7 April 2021

Date(s) of hearing:	27 August 2020
Date final submissions received:	26 August 2020
Applicant:	By telephone
Solicitors for Respondent:	Australian Government Solicitor