FEDERAL COURT OF AUSTRALIA
Skiba v Australian Information Commissioner [2023] FCA 1467
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Details
- Case
- [2023] FCA 1467
- Decision Date
CaseChat Overview and Summary
In the matter of Skiba v Australian Information Commissioner, the applicant sought an extension of time to appeal a costs order. The applicant had initially requested access to tax invoices under the Privacy Act, but the respondent, the Department of Education, Skills and Employment, had refused to provide them, stating that no such invoices existed. However, the Department had provided administrative access to a tax invoice that related to the applicant but did not contain her personal information. The primary judge dismissed the applicant's claim and ordered her to pay the respondent's costs. The applicant now sought an extension of time to appeal the costs order.
The legal issues before the court were whether a final costs order is interlocutory in nature, and thus requires leave to appeal, and whether the applicant's delay in appealing the costs order was reasonable, and whether the respondent's conduct contributed to the delay. The court held that a final costs order is final in nature, and that the applicant did not require leave to appeal. The court also found that the applicant had provided a reasonable explanation for the delay in appealing the costs order, and that the respondent's conduct did not contribute to the delay. However, the court found that the applicant's appeal would have insufficient prospects of success, and thus dismissed the application for an extension of time.
The court noted that the legal principles governing the discretion to award costs under s 43(2) of the Federal Court of Australia Act were relevantly summarised by the Full Court in Umoona Tjutagku Health Service Aboriginal Corp v Walsh. The court found that the interests of justice included considerations of the cost-effectiveness of litigation, and that a court may conclude that a departure from the general rule is warranted where substantial issues are raised by the successful party which unduly extend the time and expense of litigation. The court also noted that the obligation imposed upon a party and a party's lawyer by subss 37N(1) and (2) of the Federal Court of Australia Act to conduct proceedings in a way that is consistent with the overarching purpose in s 37M, namely, to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
The final orders of the court were that the application for an extension of time was dismissed, and that the applicant was to pay the respondent's costs, as agreed or taxed.
The legal issues before the court were whether a final costs order is interlocutory in nature, and thus requires leave to appeal, and whether the applicant's delay in appealing the costs order was reasonable, and whether the respondent's conduct contributed to the delay. The court held that a final costs order is final in nature, and that the applicant did not require leave to appeal. The court also found that the applicant had provided a reasonable explanation for the delay in appealing the costs order, and that the respondent's conduct did not contribute to the delay. However, the court found that the applicant's appeal would have insufficient prospects of success, and thus dismissed the application for an extension of time.
The court noted that the legal principles governing the discretion to award costs under s 43(2) of the Federal Court of Australia Act were relevantly summarised by the Full Court in Umoona Tjutagku Health Service Aboriginal Corp v Walsh. The court found that the interests of justice included considerations of the cost-effectiveness of litigation, and that a court may conclude that a departure from the general rule is warranted where substantial issues are raised by the successful party which unduly extend the time and expense of litigation. The court also noted that the obligation imposed upon a party and a party's lawyer by subss 37N(1) and (2) of the Federal Court of Australia Act to conduct proceedings in a way that is consistent with the overarching purpose in s 37M, namely, to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
The final orders of the court were that the application for an extension of time was dismissed, and that the applicant was to pay the respondent's costs, as agreed or taxed.
Orders
Orders of the court
1. The application for an extension of time is dismissed.
2. The applicant is to pay the respondent’s costs, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the reasons set out below, I am satisfied that the applicant requires an extension of time but does not require leave to appeal. In those circumstances, the parties were content for me to treat the purported appeal as an application for an extension of time. That being so, the application for an extension of time should be dismissed.2. BACKGROUND The background of this matter is uncontentious and is described in full by the primary judge. As such, the background relevant to this application may be briefly summarised as follows. On 11 June 2020, the applicant requested that the Department of Education, Skills and Employment provide her with “access to all tax invoices that include my name and contain references to reimbursements received by [Serendipity (WA) Proprietary Limited trading as Advanced Personnel Management] from the Employment Fund General Account” (requested documents): Skiba No 1 at [2]. On 13 May 2021, a Departmental Privacy Officer emailed the applicant advising (Skiba No 1 at [20]):There are no tax invoices related to reimbursements received by APM from the Employment Fund General Account that contain your personal information (that is there are no tax invoices that contain your name or any other information which would identify you). Consequently, you would not have received documents had I processed your request under the Privacy Act. However, I am providing you with administrative access to documents that contain references to reimbursements received by APM from the Employment Fund General Account that relate to you. Specifically, a tax invoice for a reimbursement received by APM from the Employment Fund General Account in relation to a service provided to you.(Emphasis added.) On 14 May 2021, the applicant wrote to the Department complaining that the Privacy Officer had refused to process her request under the Privacy Act 1988 (Cth): Skiba No 1 at [22]. On 21 May 2021, another officer of the Department’s legal team responded to the applicant’s email stating (Skiba No 1 at [23]):4. The department conducted searches for documents that fell within the scope of your request for access to “tax invoices that include [your] name …”. The department found no tax invoices that contained your name and contained references to reimbursements received by APM from the Employment Fund General Account. However, a tax invoice was found that contained references to reimbursements received by APM from the Employment Fund General Account. The tax invoice relates to you but does not contain your personal information. Consequently, the department was not under an obligation under APP 12 to provide you with access to that information.5. However, Privacy Officer Jacki made the discretionary decision to provide you with access to the document nonetheless in what is referred to as “administrative access”. This is an informal arrangement that the department can use to provide individuals with access to certain documents where the department is not otherwise prohibited from disclosing that information. Importantly, APP 12 operates alongside and does not replace other informal or legal procedures by which an individual can be provided access to information. In fact, the Office of Australian Information Commissioner (OAIC) has stated that providing access to personal information under an administrative arrangement will fulfil an agency’s obligation under APP 12 to provide access upon request, provided the arrangement meets the minimum access requirements in APP 12 (see paragraph 12.23 of the Australian Privacy Principles Guidelines).(Emphasis in original.)
Evidence
Evidence Before The Court
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Decision
Reasons for decision
In turn, the legal principles governing the discretion to award costs under s 43(2) of the FCA Act were relevantly summarised by the Full Court in Umoona Tjutagku Health Service Aboriginal Corp v Walsh [2019] FCAFC 32; (2019) 268 FCR 401 at [41]–[42] and [45]–[46] (White, Perry and Banks-Smith JJ) as follows:The Court has a broad discretion under s 43(2) of the FCA Act when determining appropriate costs orders which must be exercised judicially, that is, not arbitrarily, capriciously, or so as to frustrate the legislative intent…Thus, while the ordinary rule is that the successful party will receive her or his costs, that is not an absolute rule... As the Full Court explained in Queensland North Australia Pty Ltd v Takeovers Panel (No 2) [2015] FCAFC 128; (2015) 236 FCR 370 at [11], after referring to the decisions in Ruddock and Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174 with approval:11.These decisions treat the success or failure of the relevant party as being the starting point in consideration of the question of costs. However they contemplate at least three distinct categories of situation in which a successful party might be deprived of costs, or even ordered to pay the costs of the other side. One such category is where the applicant has been only partially successful in that it has not obtained all of the relief sought. The second category is where a party has succeeded in obtaining the relief sought, but has not succeeded on all bases (factual or legal) upon which it sought such relief. Of course, it is possible that a particular outcome will fall into both categories. A third category involves consideration of the successful party’s conduct of the case.…The breadth of the discretion as to costs is reflected among other things in s 43(3)(c) and (e) of the FCA Act which respectively permit the Court to make orders that the parties bear costs in specified proportions and to award costs in favour of or against a party irrespective of whether the party is successful in the proceeding… Thus, as the High Court held in Gray v Richards (No 2) [2014] HCA 47; (2014) 89 ALJR 113:2.The disposition of costs is within the general discretion of the Court. Ordinarily, that discretion will be exercised so that costs are awarded to the successful party, but other factors may have a significant claim on the discretion of the Court. The disposition which is ultimately to be made in any case where there are competing considerations will reflect a broad evaluative judgment of what justice requires.(emphasis added; citations omitted)The interests of justice include considerations of the cost-effectiveness of litigation. Thus a court may conclude that a departure from the general rule is warranted where substantial issues are raised by the successful party which unduly extend the time and expense of litigation: A, DC v Prince Alfred College Inc (No 2) [2016] SASCFC 27 at [6]–[11] (the Court). As counsel for Ms Walsh pointed out, the relevance of such considerations is highlighted by the obligation imposed upon a party and a party’s lawyer by subss 37N(1) and (2) respectively of the FCA Act to conduct proceedings in a way that is consistent with the overarching purpose in s 37M, namely, to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.(Emphasis in original; citations omitted.)
Ratio Decidendi
Legal Principle Established
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