Palmer Aviation and Airservices Australia The Age Newspaper OTHER PARTY

[2014] AATA 890

[2014] AATA 890

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/5090
Re	Palmer Aviation
APPLICANT
And	Airservices Australia
RESPONDENT
And	The Age Newspaper
OTHER PARTY

DECISION

Tribunal	Deputy President P E Hack SC
Date	24 November 2014
Date of written reasons	2 December 2014
Place	Brisbane

1. The Tribunal refuses the application made by Clive Palmer under section 30(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) to be joined as a party to this application.

2. The Tribunal refuses the applicant's request for an order under section 35(2) of the Administrative Appeals Tribunal Act 1975 (Cth).

3.   The Tribunal DIRECTS that:

a.   The applicant lodge and serve any witness statements and other evidence on which it is intended to rely at the hearing together with a Statement of Facts, Issues and Contentions by 30 January 2015;

b.   The respondent lodge and serve any witness statements and other evidence on which it is intended to rely at the hearing together with a Statement of Facts, Issues and Contentions by 27 February 2015;

c.   The other party lodge and serve any witness statements and other evidence on which it is intended to rely at the hearing together with a Statement of Facts, Issues and Contentions by 27 March 2015; and

d.   The matter be listed for hearing (1 day) on 24 April 2015.

...........................[Sgd]..........................................

Deputy President P E Hack SC

CATCHWORDS

PRACTICE AND PROCEDURE – joinder application – confidentiality application – joinder application refused – confidentiality application refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 30, 35

Freedom of Information Act 1982 (Cth) s 60

REASONS FOR DECISION

Deputy President P E Hack SC

2 December 2014

1. In these proceedings Palmer Aviation Pty Ltd seeks a review of the decision of the Information Commissioner.  By that decision the Commissioner set aside an earlier decision of Airservices Australia which had refused a request by The Age Newspaper for documents described as "details of the flight movements of aircraft with tail number

   
   

   M-ATAR”.  Palmer Aviation is described in the material as the registered owner of that aircraft.  The effect of the Commissioner’s decision, if it remains in force, is that The Age will obtain access to the single document identified by Airservices Australia as answering that description.

2. Mr Clive Palmer is described in the material as the ultimate beneficial owner of Palmer Aviation. I am concerned today with an application by him to be joined as a party to the proceedings. Section 30(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) is relied on. It provides:

   Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding.

3. As is evident, a written application by a person whose interests are affected by the decision enlivens the discretion to make that person a party to the proceedings.  For the purposes of this application I am prepared to assume that Mr Palmer is a person whose interests are affected by the decision.

4. On the view I take of the matter it is relevant to have regard to the procedural history of the matter so far.

5. The decision sought to be reviewed was made by the Commissioner on

   
   

   3 September 2014. Palmer Aviation received notice of the decision the same day. It lodged its application in the Tribunal on 1 October 2014. It paid the prescribed filing fee on 7 October 2014. Thereafter notice of the application was given to Airservices Australia and to The Age. By virtue of s 60(3)(b) of the Freedom of Information Act 1982 (Cth) The Age is a party to the proceeding.

6. On 20 October 2014 Palmer Aviation made a written application for orders pursuant to

   
   

   s 35(2) of the Administrative Appeals Tribunal Act in these terms:

   a.That any hearing in relation to this matter take place in private without The Age newspaper in attendance;

   b.Prohibiting publication of the personal information including the name Clive Palmer, his address, the registration number of his plane and the company name Palmer Aviation Pty Ltd;

   c.Prohibiting the publication of evidence given before the Tribunal; and

   d.Prohibiting the disclosure of documents to The Age newspaper.

   Palmer Aviation did not give a copy of the application to either Airservices Australia or to The Age.  The application for those orders was listed for hearing on 7 November 2014.  On that day, after hearing from the parties, I made orders as follows:

   1.Until further order any material to be lodged by the respondent not be served on the other party until seven days after service of that material on the applicant;

   2.If within that period of seven days the applicant makes an application for a section 35 order in relation to all or part of the material, the material is not to be served on the other party until the hearing and determination of the application of section 35 order;

   3.The applicant's request for an order under section 35 of the Administrative Appeals Tribunal Act (Cth) is otherwise refused;

   4.The other party is to notify the Tribunal, and the applicant and respondent, within 10 days of today whether it intends to put in issue any part of the decision of the Information Commissioner of 3 September 2014; and

   5.The matter be listed for directions hearing at 9:00 am on 19 November 2014.

7. Airservices Australia lodged the s 37 documents on 12 November 2014 but, consistently with my direction, did not provide a copy to the representative of The Age.

8. Then, late on the afternoon of 18 November 2014, Palmer Aviation made further application for orders pursuant to s 35 of the Administrative Appeals Tribunal Act in relation to "all or part" of the s 37 documents.

9. The matter came back for directions on 19 November 2014 whereupon it became apparent that Palmer Aviation had not served a copy of its application of

   
   

   18 November 2014 on The Age.  In light of this failure, and after hearing briefly from the parties, I made these directions:

   1.Until further order only the index to the section 37 documents be provided to the other party;

   2.The applicant is to lodge in the Tribunal and serve on the respondent and the other party any application for an order under section 35 of the Administrative Appeals Tribunal Act 1975 (Cth), and submissions in support, by 4 pm on 20 November 2014; and

   3.The matter be adjourned to 9:15 am on 24 November 2014.

10. On 20 November 2014, Mr Clive Palmer made this application to be joined as a party to the proceedings. The application was lodged by the same employed solicitor who has acted for Palmer Aviation to date in the proceedings. Mr Palmer's submissions in support of his application, after reciting s 30(1A) of the Administrative Appeals Tribunal Act, say this:

    3.Given that the crux of this matter goes to whether Clive Palmer was required to be consulted under the Freedom of Information Act 1982 (Cth) and whether his personal information and safety has been adequately considered by the decision-maker and the Information Commissioner before making their respective decisions, it is his opinion he is an interested party and should be granted leave to be joined as a party to this proceeding.

    4.In the event that Clive Palmer is granted leave to be joined as a party, and given that the disclosure of the material lodged by the respondent to the other party impact on him, he requests that he be allowed adequate time to consider making an application for a section 35 order in relation to the material lodged by the respondent prior to its release to the other party.

11. I decline to make the order sought.  In my view no reason is shown to exercise the discretion favourably to Mr Palmer.  His application misunderstands the nature of a review in this Tribunal.  Moreover, it is apparent that the joinder, if permitted, would unnecessarily delay the efficient resolution or determination of the application.

12. As to the first of these matters, it is not apparent, nor was Ms McDermott, the solicitor for Mr Palmer, able to explain, what interest Mr Palmer had that differed from the interests of Palmer Aviation.  Mr Palmer is said to be the ultimate beneficial owner of Palmer Aviation.  There is no reason why evidence cannot be put on, and submissions made, about his personal information and safety if Palmer Aviation determines it necessary to do so.  What is apparent to me is that Palmer Aviation has misconceived the task of the Tribunal in dealing with the substantive application.  The grounds in support of the application are apt as grounds for judicial review by the Court; not merits review by the Tribunal.  It will be for the Tribunal to determine, on the basis of the evidence and submissions of the parties to these proceedings, the correct or preferable decision.  The Tribunal will not be required to consider whether the decision-making process adopted by the Information Commissioner, or by Airservices Australia, was flawed.

13. And, as I say, joining Mr Palmer will inevitably delay these proceedings. The matter is listed for a Telephone Conference on 4 December 2014. To agree to Mr Palmer's request for joinder and then to allow him "adequate time" to consider making an application under section 35 would have the consequence that that conference would need to be adjourned. With the current workload of conference registrars it is unlikely that it could be relisted conference until the New Year. I will be seeking to have this matter ready for hearing in late January or early February 2015. There seems to be no reason why that could not be done provided the parties cooperate with one another and with the Tribunal.

14. In the result I refuse the application by Mr Clive Palmer to be made a party to the proceedings.

15. I am now dealing with an application by Palmer Aviation for a s 35 order in relation to the documents lodged by the respondent, Airservices Australia, pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth). Whilst the application was presented somewhat boldly, on closer analysis it transpires that objection is taken to the release of two documents: document T2 and document T4/5. The first of these is a letter of

    
    

    24 October 2013 from Palmer Aviation to Airservices Australia setting out its submissions in opposition to access to documents being given to The Age. Document T4/5 is also a letter from Palmer Aviation of 13 September 2013 objecting to the primary decision made by Airservices Australia.  Both of those documents are marked “strictly confidential”.

16. It is necessary to recite that s 35 permits the Tribunal to make orders restricting access to documents and restricting access to the hearing and suchlike, but subs (3) of that section requires me, in considering those questions, to take as the basis of my consideration the principle that it is desirable that hearings before the Tribunal should be held in public and that evidence given before the Tribunal, and the contents of documents lodged in the Tribunal or received in evidence by the Tribunal, should be made available to the public and to all the parties. I am, though, required to pay due regard to any reasons given to the Tribunal as to why the hearing should be held in private or why publication or disclosure should be prohibited or restricted.

17. Given that the entire basis on which the section 35 orders are now sought comes down to the description or the claim that the documents were “strictly confidential”, it appears to me that no proper basis has been given to depart from the default position imposed by s 35(3) of the Act.

18. In the circumstances I decline to make any order in relation to the s 37 documents. They ought now be provided without redaction to the other party.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

.............................[Sgd]........................................

Associate

Dated 2 December 2014

Date of hearing	24 November 2014
Solicitors for the Applicant (and the Applicant for joinder)	Ms S McDermott, Mineralogy
Solicitors for the Respondent	Ms K Stewart, Airservices Australia
Advocate for the Other Party	Mr C Vedelago, The Age Newspaper