Kirkwood, Christine v Secretary Department of Human Services and Health [1995] FCA 1128

CATCHWORDS ADMINISTRATIVE LAW - Appeal from Administrative Appeals Tribunal - discretion to recommend that Attorney-General pay costs. FOI ACT - Appeals - AAT - consideration of similar requests by related parties - requests by applicant and applicant's solicitor - each request to be treated on its own merit. FOI ACT - Appeals - AAT - Discretion to recommend that Attorney-General pay costs - relevant considerations - relevance of financial circumstances. FOI ACT - Appeals - AAT - Discretion to recommend that Attorney-General pay costs - relevance of delay by decision-maker - consideration of unreasonableness. FOI ACT - Appeals - AAT - Discretion to recommend that Attorney-General pay costs - relevance of "offer to settle". Administrative Appeals Tribunal Act 1975 (Cth) Freedom of Information Act 1982 (Cth) Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 CHRISTINE KIRKWOOD v SECRETARY DEPARTMENT OF HUMAN SERVICES AND HEALTH No. G136 of 1995 Beazley J 12 December 1995 Sydney

IN THE FEDERAL COURT OF AUSTRALIA ) ) No. G136 of 1995 NEW SOUTH WALES DISTRICT REGISTRY ) ) GENERAL DIVISION ) CHRISTINE KIRKWOOD Applicant SECRETARY DEPARTMENT OF HUMAN SERVICES AND HEALTH Respondent CORAM: BEAZLEY J PLACE: SYDNEY DATE: 12 December 1995 SHORT MINUTES OF ORDER The Court orders that: 1. The appeal be allowed. 2. The matter be remitted to the Tribunal for determination in accordance with law. 3. The respondent pay the applicant's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA ) ) No. G136 of 1995 NEW SOUTH WALES DISTRICT REGISTRY ) ) GENERAL DIVISION ) CHRISTINE KIRKWOOD Applicant SECRETARY DEPARTMENT OF HUMAN SERVICES AND HEALTH Respondent CORAM: BEAZLEY J PLACE: SYDNEY DATE: 12 December 1995 REASONS FOR JUDGMENT BEAZLEY J: This is an appeal brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) from a decision of the Administrative Appeals Tribunal (the Tribunal) dated 6 February 1995 in which the Tribunal declined to make a recommendation, pursuant to s 66 of the Freedom of Information Act 1982 (Cth) (the FOI Act) to the Attorney-General that the costs of the applicant in relation to proceedings brought in the Tribunal against the respondent, be paid by the Commonwealth. The appeal is on a question of law only: s 44(1) of the AAT Act. These reasons for judgment should be read in conjunction with my reasons for judgment in No. G351 of 1994, Cashman & Partners v Secretary, Department of Human Services and Health (12 December 1995) (the Cashman proceedings). Because the decisions are related and as I have dealt with the relevant statutory provisions in those reasons, I propose to deal with this matter in brief form. Background Facts The applicant is the widow of Mr Alan Kirkwood who died on 19 August 1990 following fracture of a Bjork Shiley 70 degree convexo-concave heart valve which had been implanted into Mr Kirkwood at the Royal North Shore Hospital on 21 July 1982. On 2 June 1993, the applicant made a request under the FOI Act for access to all documents in the possession of the Department: "concerning or arising out of: 1. Any report of the fracture of the...heart valve (implanted in Mr Kirkwood); 2. Any other reported or suspected fractures of other Bjork Shiley convexo-concave heart valves, being either 60 degree or 70 degree valves: (a) in Australia; and (b) in any other country." On 20 July 1993, Mr John Dewar of the Information & Secretariat, Therapeutic Devices Branch of the Department wrote to the applicant's solicitors and advised them that as her request was "basically the same" as a request made by Cashman & Partners on 22 May 1992, "[r]elease of these documents will depend on the outcome of the appeal process" in that matter. However, in another letter written the next day by Mr Gallimore, Director of Administrative Law and Litigation, Legal Services Branch of the Department, the applicant's solicitors were advised that consultations were taking place with the manufacturer and distributor of the device pursuant to s 27 of the FOI Act and that a "decision will be made as soon as possible". Mr Gallimore indicated that the request appeared to relate to the same documents as had been requested by Cashman & Partners on 22 May 1993. Cashman & Partners, who are the applicant's solicitors, had themselves made an FOI request relating to the Bjork Shiley valve (the Cashman FOI request). The terms of that request were: "Documents in the possession of the Federal Department of Health and/or other agencies, committees and sub-departments under the jurisdiction of the Department of Health relating to Bjork-Shiley Prosthetic Convexo-Concave Heart Valves." The respondent's letter sought clarification from the applicant's solicitor as to whether the applicant's request was different to the Cashman FOI request. The applicant's solicitors responded on 27 July 1993, denying that the "same documents" were sought by the applicant as were sought in their own request. The applicant's solicitors responded to Mr Dewar's letter in essentially the same terms and requested him to proceed to process the applicant's request in accordance with the statutory requirements of the FOI Act. Mr Gallimore responded to the applicant's solicitors on 3 August 1993 in which he again asserted that "the documents caught by the two requests are for all practical purposes, identical". He confirmed that the Department had contacted the manufacturer and distributor as required by s 27 of the FOI Act and advised that the application was being processed "as quickly as possible". The effect of the respondent having failed to make a decision on her application, however, was that there was a deemed refusal to grant access to the documents sought by the applicant: s 56(1) of the FOI Act. On 27 April 1994, the applicant lodged an application with the Administrative Appeals Tribunal (the Tribunal) to review the deemed refusal. On 9 June 1994 Dr Beech, the Director of the Therapeutic Devices Branch, advised the applicant's solicitors that: "Extensive searches have been conducted within the Department to locate any documents specifically relating to the failure of the heart valve that was implanted into the late Mr Alan Kirkwood as referred to in your letter dated 2 June 1993. As no such specific documents have been located, I have decided to release the same documents that were released to you under [the Cashman FOI request]." Dr Beech advised that he proposed to adopt for the purposes of the applicant's request, the decision in the Cashman proceedings. He enclosed copies of the schedules of documents prepared in relation to that matter. Subsequently, the Department released a further document pertaining to the applicant's request. During the course of the preliminary procedures associated with the hearing of the application in the AAT, the applicant's solicitors informed the respondent that the applicant was proposing to make an application under s 66 of the FOI Act. Subsequently, on or about 29 July 1994, the applicant's solicitors indicated that, pending confirmation that documents were being released in the related Cashman FOI request, the applicant would not be pursuing her particular request. The applicant's solicitors added that they would be seeking costs of the applicant's application to the AAT, if not by agreement, then pursuant to a s 66 application. Subsequently, the applicant made an offer to "settle" her claim for costs. On 1 July 1994, the respondent rejected the applicant's offer. The applicant's solicitors raised the matter again in a letter to the Australian Government Solicitor dated 11 August 1994. However, no settlement was reached. The s 66 application was heard by the Tribunal on 19 December 1994. At the hearing of the application before the Tribunal, the correspondence relating to the settlement offer was tendered and admitted by the Tribunal "subject to relevance". On 6 February 1995, the AAT handed down its decision declining to recommend to the Attorney-General that the costs of the applicant in relation to the proceedings be paid by the Commonwealth. It was contended on behalf of the applicant that the Tribunal erred in law in refusing to make a recommendation under s 66: 1. in failing to properly take into account the uncontroverted evidence of the applicant as to her financial circumstances; 2. in its finding that the applicant's FOI request was unnecessary given that it was effectively the same as the Cashman FOI request; 3. in finding that the delay in giving access to the documents subject of the request was not unreasonable; and 4. in excluding evidence of a settlement offer in respect of costs. It was submitted that the error of law raised by grounds 1 and 3 was that the decision was Wednesbury unreasonable. It is thus convenient to refer to that principle at the outset, and to then consider its application to those grounds. The classic statement in Australia of the principles governing manifest unreasonableness as a ground of administrative review is that of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 41 where his Honour said: "...both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it. Ground 1: Financial Hardship to the applicant In her grounds of appeal the applicant alleged that the Tribunal erred in law in determining that payment of the costs or any part of the costs of the applicant in making the application would not cause financial hardship to the applicant: see s 66(2)(a). The essence of the submissions in support of this ground was that, as the applicant's evidence on financial hardship was unchallenged and uncontroverted, the Tribunal should have made a finding in her favour. This submission cannot be made good. It confuses the existence of uncontroverted evidence with the sufficiency of evidence. The only evidence before the Tribunal was that the applicant was not able to engage in full time employment, due to her responsibilities as a sole parent and carer of 3 young children, and that her primary source of financial support had been income earned by her late husband. The applicant gave no evidence of her financial position or her income or other means of support. The result was that the Tribunal stated that it could not be satisfied on the evidence that there would be financial hardship to the applicant if a recommendation was not made under s 66. Save only for the question whether a decision is unreasonable in the Wednesbury sense, it is for the Tribunal to determine whether it is satisfied on the evidence that a particular matter has been made out. In the present case, the applicant failed to give any evidence in respect of her income or means or assets, all being relevant matters to the question in issue, namely whether the payment of costs or part of the costs of the application would cause financial hardship. In those circumstances, it was understandable that the Tribunal was not satisfied on the evidence that the applicant would suffer financial hardship if an order was not made. Accordingly, there was no legal error in the Tribunal's decision on this issue. Ground 3: whether delay in giving access to the documents was unreasonable The Tribunal found that the delay which resulted in the deemed refusal was not unreasonable. The Tribunal stated: "20.I have taken into account the observation of Sweeney J that a recommendation that the costs of an applicant be paid would be likely to shorten rather than lengthen proceedings, by encouraging respondents to such applications to review (sic) to make prompt decisions in relation to them. I have also taken into account the applicant's submissions on delay and procrastination in the earlier proceedings. This was commented on by the Tribunal in [the Cashman proceedings]. 21. Nonetheless, it seems to me that the procedure adopted by the respondent was not unreasonable, principally because the second FOI request was unnecessary. Whatever the arguments proffered and rejected which appear in the correspondence between the applicant's solicitors and the respondent, the requests on the face of them are, in my view, a sufficient demonstration that the second application was a request for documents which must necessarily have been included within the terms of the wider first application. This indeed turned out to be the case and that fact was accepted by the applicant. The documents produced in response to the first request (although somewhat tardily) were a complete answer to the second request, except for one line of coded information which was subsequently discerned. The second request was to an extent, therefore, an unnecessary duplication resulting in the incurring of unnecessary costs. 22. I have concluded therefore, that the delay which resulted in the deemed refusal was not, in the circumstances of the present application, unreasonable. Furthermore, it appears that the bringing of the application to this Tribunal at a late stage, over 8 months after the conclusion of the correspondence, can also not have been conducive to limiting the costs of the whole exercise. This is a discretionary factor which I take into account." It was submitted that the Tribunal's finding that the delay in granting access to documents was Wednesbury unreasonable. In particular, it was submitted that it must be Wednesbury unreasonable not to comply with the statutory provisions, which require that a decision be made within 30 days of the receipt of a request, or within a further 30 days if the agency determines in writing that the requirements of ss26A, 27, or 27A make it appropriate to extend the period. I do not agree that there is any such broad principle. The time frame prescribed by the Act will be a relevant factor in the consideration of any question of delay. However, in any given case, the whole of the circumstances, which will vary from case to case, will have to be taken into account. In the present case, the Tribunal linked the FOI request to the FOI request in the Cashman proceedings. In those proceedings the Tribunal held that the delay was not such as to cause it to make a recommendation in respect of costs. Although in that case the Tribunal's determination was based on the wrong decision, I held, independently of that issue, that the Tribunal erred in law in failing to take into account relevant factors on the question of delay. As the Tribunal's finding on delay in that matter formed the basis for its finding on delay in this matter, it follows that the Tribunal likewise erred in law in this matter. Ground 2: Whether applicant's FOI request was unnecessary The Tribunal recognised that the terms of the applicant's FOI request were not identical to the Cashman FOI request. However, it found (at 5) that the applicant's request: "must necessarily be included within [the Cashman FOI request]. [The Cashman FOI request] related to all documents generally dealing with these valves. The [applicant's request] dealt with documents relating to a specific valve and to specific fractures". The Tribunal found therefore that the applicant's FOI request was "unnecessary". It was submitted that the Tribunal's finding that the second FOI Act request was unnecessary was "illogical and a legal non-sequitur on a material question in issue". However, this submission does not expose the Tribunal's error. I agree that the Tribunal erred in finding that the second request was unnecessary. The applicant was entitled to make the request. Consequently, she was entitled to a consideration of her application on its own merits. There may have been considerations in the applicant's request which were relevant only to the applicant's matter, or which may have had different implications from the Cashman FOI request. The Tribunal, by considering that the applicant's request was unnecessary, deprived itself of the opportunity to consider such matters. It is not to the point that the Tribunal may have found that matters relating to the Cashman proceedings were relevant to consider in this application. Ground 4 It was submitted that the Tribunal erred in law in failing to take into account the settlement proposal on the question of costs. Initially it was submitted that the Tribunal had wrongly rejected evidence of the settlement proposal. It was subsequently conceded that the evidence had been admitted, "subject to relevance". The submission finally was that the reasonableness of the offer as to costs was a factor which should be taken into account in the exercise of the Tribunal's discretion as to whether it should make an order as to costs. An offer by a party to settle proceedings on a certain basis may be a relevant matter to consider in determining whether an order for costs ought to be made in a jurisdiction where costs do not follow the event, but where costs may be made ordered in special or specified circumstances. An offer to settle may also be relevant to a determination as to the basis or scale on which costs may be awarded, e.g. whether indemnity costs should be awarded in a jurisdiction where costs normally follow the event. There is no provision in the AAT Act for awarding costs. However, s 66 of the FOI Act provides that the Tribunal may make a recommendation to the Attorney-General in respect of costs of proceedings for review of a decision under the FOI Act. In my opinion, the fact that a party makes an offer that it will not make an application for costs if the respondent pays a specified amount of costs, is not relevant to the question whether a recommendation for costs should be made. Accordingly, I reject this ground.