FEDERAL COURT OF AUSTRALIA O'Donoghue v Commonwealth of Australia [2012] FCA 1160 Citation: O'Donoghue v Commonwealth of Australia [2012] FCA 1160 Parties: VINCENT THOMAS O'DONOGHUE v COMMONWEALTH OF AUSTRALIA and MINISTER FOR IMMIGRATION & CITIZENSHIP File number: WAD 219 of 2012 Judge: BARKER J Date of judgment: 23 October 2012 Catchwords: ADMINISTRATIVE LAW – Freedom of Information Act 1982 (Cth) – judicial review – internal review of a decision Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) Extradition Act 1988 (Cth) Federal Court of Australia Act 1976 (Cth) s 37M(1), Pt VB Freedom of Information Act 1982 (Cth) s 16, s 54B(1), s 54C, s 54D, Pt VI Federal Court Rules 2011 (Cth) R 4.12 Date of hearing: 17 October 2012 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 58 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondents: Mr P MacLiver Solicitor for the Respondents: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 219 of 2012 BETWEEN: VINCENT THOMAS O'DONOGHUE Applicant AND: COMMONWEALTH OF AUSTRALIA First Respondent MINISTER FOR IMMIGRATION & CITIZENSHIP Second Respondent JUDGE: BARKER J DATE OF ORDER: 23 OCTOBER 2012 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The name of the first respondent be changed to Commonwealth of Australia. 2. The proceeding be dismissed. 3. The applicant pay the respondents' costs of the proceeding from and after 20 September 2012 to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 219 of 2012 BETWEEN: VINCENT THOMAS O'DONOGHUE Applicant AND: COMMONWEALTH OF AUSTRALIA First Respondent MINISTER FOR IMMIGRATION & CITIZENSHIP Second Respondent JUDGE: BARKER J DATE: 23 OCTOBER 2012 PLACE: PERTH REASONS FOR JUDGMENT judicial review application 1 By an originating application for judicial review made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and filed on 28 August 2012, the applicant seeks a declaration that the respondents have breached their statutory duties under the Freedom of Information Act 1982 (Cth) (FOI Act) when they failed to conduct an internal review of a decision under the FOI Act. 2 After hearing the application on 17 October 2012 I dismissed the application with costs and gave brief oral reasons for so doing. I indicated that I would later provide more detailed written reasons. These are the written reasons. PRELIMINARY ISSUES 3 Before dealing with the substantive application and the reasons for its dismissal, it is appropriate also to mention something of the preliminary hearings and programming orders made leading up to the hearing and certain applications made by the applicant at the hearing, which in each case I also dismissed. 4 As noted above, the originating application for judicial review was filed in the Court on 28 August 2012. It was then listed at 2.15 pm on 3 October 2012 "for hearing". 5 At material times the applicant was being held pursuant to orders made under the Extradition Act 1988 (Cth) (Extradition Act) at Hakea Prison in the metropolitan area of Perth, Western Australia. He was brought to the Court in the central business district of Perth for the purpose of this initial hearing. 6 When the matter was called on, I sought information first from the applicant, who was self-represented, and then from counsel who appeared for the respondents as to the issue raised by the proceeding. As a result of those enquiries it appeared to me that the issue was of a fairly narrow compass, namely whether the respondents had failed to conduct an internal review of a decision providing access to information, but not two particular documents, within the time specified under the FOI Act; whether internal review of the decision requested had recently been undertaken and the applicant notified of the outcome; and whether it would be appropriate in any event for the Court to make any declaration of the type proposed by the applicant in his originating application. 7 Put very briefly, what then appeared to have happened was that following a decision made under the FOI Act the applicant had made a request for an internal review. For one reason or another that request was not immediately acted upon. Following later clarification – but after the 30-day time period under the FOI Act for completing the internal review had expired – the respondents (by a relevant officer) in fact completed the review and had, or had proceeded to, notify the applicant of the outcome. 8 In those circumstances I considered that the proceeding should be set down for a final hearing on Wednesday, 10 October 2012 and proposed programming orders requiring the respondents to put on an affidavit stating the respondents' position by 4 pm on Friday, 5 October 2012 and that the applicant file any responsive affidavit (if necessary in handwriting) by 4 pm on Tuesday, 9 October 2012. Alternatively the applicant could give oral evidence at the hearing in response to matters raised in the respondents' affidavit materials. 9 Despite some reluctance by the applicant and the mention by him of difficulties he faced at the Hakea Prison in obtaining access to relevant information, writing materials and the like, I indicated that the hearing should proceed as I had outlined. I also indicated that a copy of the transcript of the hearing of 3 October 2012 should be provided by the Court to the applicant. 10 Immediately prior to the hearing listed for 10 October 2012 being called on, the Court became aware that the applicant had not been conveyed from Hakea Prison to the Court for the purpose of the hearing. Arrangements were made for the applicant to participate in the hearing by telephone. The Court then indicated that it was inappropriate to endeavour to complete the hearing by telephone or by video conference link from Hakea Prison and that the hearing should be adjourned until 17 October 2012. Despite the further suggestion by the applicant that the hearing be adjourned for a longer period, the Court declined to do so. 11 Subsequently, the applicant sought leave to appeal against the decision or decisions of the Court, culminating in the listing of the originating application for hearing on 17 October 2012, which application was refused by Nicholas J in the New South Wales District Registry of the Court on 16 October 2012. 12 As a result the matter was called on for hearing on 17 October 2012, with the applicant then being present. 13 The applicant raised three separate preliminary issues before the matter proceeded. First, he submitted that I should recuse or disqualify myself on the grounds of bias. Secondly, he submitted that the hearing should be adjourned. Thirdly, he suggested that he should be the beneficiary of a pro bono certificate issued by order of the Court under the Federal Court Rules 2011 (Cth) (Rules). 14 After hearing the applicant's submissions I declined to recuse or disqualify myself on the basis that there was no bias actual or apprehended. I again refused to adjourn the hearing on the basis that, shortly stated, there was a well-defined issue that could be attended to and an adjournment was not necessary. Thirdly, I indicated the Court was not prepared to cause the issue of a pro bono certificate. Short reasons for each of these decisions were provided orally at the time and what follows is an edited account of my reasons. 15 In relation to the question of conflict or bias, it is well understood by the Court that a judge should not sit on a matter where there is any actual bias or reasonable apprehension of bias. I do not find any need to rehearse the well-known authorities of the High Court as to how the reasonable apprehension test works. It is enough to say that it is not sufficient just that a judge should feel that he or she is not biased; it is a question of how, taking into account the facts, it would be reasonably understood beyond the community of the Court by a reasonable person. 16 The circumstances of my dealings with the applicant or matters relating to the applicant mentioned that might raise the question of reasonable apprehension of bias are the dealings by me with his earlier proceedings in the Court that involved a review of the decision by a magistrate under the Extradition Act, where the review application was not successful before me, and an associated question of bail, which I refused, on which he placed a particular emphasis. These are not enough to cause me to consider there is any actual or reasonable apprehension of bias. I have no recollection of whatever was said on the transcript in relation to bail, which the applicant read out in Court that suggested I initially thought he could have bail, and then when I made the formal decision, or at least provided formal reasons, I said he could not. I do not have any personal recollection that I was at one point of the view that he might have bail and then came to a different view later when I gave reasons for a decision. I would note, however, that transcripts are not always correct and often do not get corrected, and errors do creep in. I have discovered over time in the course of legal practice and as a judge in writing judgments the word "not" is occasionally left out of a transcript and, for some reason, often escape proof-reading as well. The decision that I eventually came to in the bail matter does not cause me to think there is any question of actual conflict or bias on the reasonable apprehension test in this case. 17 The second particular matter the applicant raised in relation to reasonable apprehension of bias is the order I made while President of the State Administrative Tribunal of Western Australia (SAT) in Real Estate and Business Agent Supervisory Board, Vincent Thomas O'Donoghue, State Administrative Tribunal of WA, VR:243/2007. I stated during the hearing that I had absolutely no recollection of, and I still have absolutely no recollection of, the proceeding in the State Administrative Tribunal involving the applicant. During the hearing I asked my associate to identify the proceeding from the SAT website and to print off the orders and any decision I made in that proceeding. It appears I sat on a matter in the vocational regulation stream which arose under the Real Estate and Business Agents Act 1978 (WA). A number of orders were made including: 1. The certificate of registration of the respondent is cancelled with immediate effect and the certificate of registration is to be immediately surrendered; 2. The respondent is permanently disqualified from being registered; and 3. There is no order as to costs. 18 What is apparent immediately from the body of the orders is that they were made with the consent of the parties, as it is stated: On the application of the Real Estate and Business Agents Supervisory Board (the Board) referred to mediation before the President, Justice Michael Barker on 15 January 2008: The Board alleged and Vincent Thomas O'Donoghue (the respondent) agreed: 19 Then order (l) and the final paragraph before the formal orders states: (l) That the orders set out below should be made by the Tribunal. The Tribunal being satisfied that there is proper cause for disciplinary action pursuant to s 103(4)(c) and s 103(4)(d) of the Real Estate and Business Agents Act 1978 (WA) orders with the consent of parties: (Emphasis added). 20 It seems, consistent with the mediated and agreed outcome, that no separate reasons were published upon the matter being resolved by consent. 21 In all of those circumstances there is nothing concerning my involvement in that proceeding, in being the pronouncer of the consent orders, that leads me to consider that I have any actual bias or that there is any reasonable apprehension of bias in me dealing with a matter that now arises under the FOI Act concerning an internal review of a decision not to provide the applicant with certain documents. 22 In relation to actual conflict or bias, the applicant also stated that on 3 October 2012, I seemed to rely on materials of the Commonwealth. This might also involve questions of perception and reasonable apprehension of what the Court was doing, but I did not think it could be reasonably said that the Court, in fact, was being led by and adopting whatever it was that the Commonwealth put forward. In fact, the transcript shows quite to the contrary. The Court, as explained at the time, wanted to know just what the position factually was in relation to the internal review question raised by the application, and sought information and was given information by counsel for the respondents. Indeed, before that happened, there had been a minute prepared in advance of the hearing by counsel for the respondents proposing a particular way of programming the matter. The Court declined to act upon this minute. In fact, the applicant pointed to the minute that the respondents had produced and wanted, in effect, to proceed in that way, and the Court indicated it held a different view about how a matter of this nature should proceed. 23 Thus, I hold that there is no good reason to consider that the Court should recuse or disqualify itself from hearing this particular proceeding before me. 24 In relation to the second matter concerning adjournment, I consider, for the reasons that I advanced on 3 October 3012, and then again on 10 October 2012 when the matter, in effect, had to be aborted when the appellant could not personally appear, that this is a matter that should proceed sooner rather than later. The application that is before the Court and which I listed for hearing is in these terms: The applicant applies to the Court to Review the decision not to, or the failure of the 1st Respondent and the 2nd Respondent to carry out an internal review of the decision of the 1st Respondent dated 03 May 2012. 25 The application relates to a decision made under the FOI Act, in respect of which internal review is required to occur under that legislation. It seemed to me then and it seems to me now that it is an issue very narrowly described, and even though I understand that the applicant holds the view that the particular issue of internal review relates to a much bigger issue that has to do with his extradition circumstances, it does not detract from the fact that it really is a narrow issue before the Court and there is no reason why the Court should not deal with it now. In fact, the issue is so narrowly circumscribed, in my view, that the Court does well to deal with a matter like this now, without delay. 26 It has been pointed out by me previously, when the programming orders were made, that there are more considerations when it comes to questions of adjournment and programming of proceedings than just the applicant's or just a respondent's, and the Court has a real interest in this, in the sense that public resources are used for court time. I formed a view and I still hold the view that the issue which has been raised by the originating application for judicial review is so narrowly defined that it can easily be dealt with, and there was no prejudice to the applicant in proceeding in this way. 27 The application has been brought and as such the applicant must necessarily know what it is he wants to say. The respondent is prepared. To respond to exactly these sort of case management issues, the Federal Court of Australia Act 1976 (Cth) was not long ago amended to introduce Pt VB concerning case management in civil proceedings, as this proceeding is. In s 37M(1), the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible. 28 It is understood that a range of matters need to be taken into account in deciding whether moving quickly will also involve the just resolution of a dispute, or simply saving money will not compromise the just resolution of the dispute. The purpose of s 37M is not just that courts should go fast or as cheaply as they can if justice in a particular case is going to be compromised. In my assessment, there is no likely compromise to the question of justice here, despite the assertions and belief by the applicant that his rights to a fair trial will be compromised in the process. Thus, in the result, the application for an adjournment, which was renewed, is refused. 29 The last issue raised concerns a pro bono certificate under R 4.12 of the Rules. Under the Rules, the question whether a pro bono certificate should go in any case is entirely for the Court to decide. It is not something that a party can in fact formally apply for. There is no power to seek a review of a decision about it. It is simply a mechanism that is in the Rules to facilitate the issue of a certificate where a Court thinks it appropriate. 30 Having regard to the nature of the issue which is being raised in this proceeding I simply do not see that there is any need for a certificate to issue. I do not propose to act under that particular Rule as invited to do so by the applicant. 31 I also comment, as I did previously on 3 October 2012, that notwithstanding the difficulties the applicant may experience being at Hakea Prison in not having easy access to materials and the like, which are matters between him and the people who operate the prison, that if he were not able to put on an affidavit, even a handwritten affidavit in response if that is what he desired to do, he could give his evidence orally at the hearing, and that remains the case on this hearing. THE APPLICANT'S POSITION AT THE HEARING 32 Immediately prior to those preliminary issues being determined, the applicant indicated that, while he had earlier indicated to the Court and the respondents that he required the opportunity to cross-examine Mr Rowan James Patterson, whose affidavit had been filed in the proceeding by the respondents, he no longer required that opportunity, including in the event that his three preliminary applications were unsuccessful. Thus the hearing proceeded. 33 The applicant indicated that he did not intend to give evidence in the proceedings. He also indicated that he did not wish to make submissions. 34 Counsel for the respondents formally moved to amend the name of the first respondent, which had originally been described as "Department of Immigration & Citizenship" and replace it with "Commonwealth of Australia". There was no objection to that course and I ordered accordingly. 35 Counsel for the respondents formally read the affidavit of Mr Patterson, noting that it provided a brief history of events and attached documents relevant to the communications that had passed between the applicant and the Department on behalf of the respondents and relevant decisions made. 36 Counsel for the respondents submitted that in fact, there was some confusion as to the circumstances in which the respondents had received the request for internal review of the freedom of information decision, made by the applicant, but then when the matter had been clarified and the internal review had been conducted, as agreed with the applicant, the applicant had been notified of the outcome. 37 In the circumstances, counsel submitted that no relief was appropriate or required. 38 At that point, even though the applicant had indicated he did not intend to make submissions, in reply he submitted that if there has been a wrong committed then it should be righted and that it was appropriate for the Court to make a declaration that the respondents had failed to comply with their statutory duty to conduct an internal review of the relevant decision under the FOI Act, as requested by him, within the requisite time. 39 In this regard, the applicant drew attention to the power of the Court under s 16 of the ADJR Act to make an order declaring the rights of parties in respect of any matter to which a decision relates. FACTUAL BACKGROUND 40 The factual setting in which this proceeding has arisen is contained in material parts of the affidavit of Mr Patterson referred to earlier and formally read by the respondents in the proceeding. It is indeed the only evidence formally adduced at the hearing, given that the applicant declined the opportunity to give any evidence. That said, the facts seem to be quite uncontroversial and it is difficult to see what the applicant could have added to the material facts. The account now provided is taken directly from [3]-[22] of Mr Patterson's affidavit. 3. On or about 11 December 2009, the applicant lodged a request with the Migration Review Tribunal (MRT) for access under the Freedom of Information Act 1982 (the FOI Act) to the following documents: All files and papers. All that & those documents, papers, letters, emails, faxes, notes, memoranda & all & any other written records, however arising & whensoever arising and whether directly or indirectly arising in regards to this matter, including though not limited to Commonwealth agencies, State agencies and overseas agencies and all other third parties and Courts and Govt. Depts. 4. Annexed hereto and marked 'RJP-1' is a copy of the applicant's freedom of information (FOI) request dated 11 December 2009. 5. The applicant's request was transferred in part by the MRT to the Department on or about 16 December 2009 for the Department to assess those documents within the scope of the request which were held by the Department. 6. On 5 March 2010, an officer of the Department, Ms Elizabeth Larkins, made a decision to partially release a copy of the documents requested by the applicant. Annexed hereto and marked 'RJP-2' is a copy of Ms Larkins' Decision Record, Schedule of Documents and covering letter from the Department to the applicant dated 5 March 2010. 7. The applicant requested internal review of Ms Larkins' decision of 5 March 2010 and on 16 April 2010 an officer of the Department, Mr Mark O'Rourke, decided to release the documents previously released to the applicant and a number of other documents. Mr O'Rourke also exempted a number of documents from release. Annexed hereto and marked 'RJP-3' is a copy of a letter from the Department to the applicant dated 16 April 2010, attaching Mr O'Rourke's Statement of Reasons and Schedule of Documents. 8. By application dated 20 September 2010, the applicant applied to the Administrative Appeals Tribunal (AAT) for review of Mr O'Rourke's decision of 16 April 2010. A copy of the application is annexed hereto and marked 'RJP-4'. I am informed by the Australian Government Solicitor and believe that the applicant's application is listed for hearing in the AAT on 17 December 2012. 9. On 15 February 2011, the Department received a further FOI request from the applicant in the following terms: I now wish to make application for all documents and files since the date of the above decision. 10. Annexe hereto and marked 'RJP-5' is a copy of the applicant's FOI request dated 8 February 2011. 11. On 17 March 2011, an officer of the Department, Ms Angela Manamperi, decided to release, in full, the documents within the scope of the applicant's request. Annexed hereto and marked 'RJP-6' is a copy of a letter from the Department to the applicant dated 17 March 2011 advising him of Ms Manamperi's decision. 12. On 19 March 2012, the Department received a further request from the applicant seeking access to documents under the FOI Act in the following terms: I now make a fresh application under the Freedom of Information Act noting that this application is in the same terms as my earlier application. 13. Annexed hereto and marked 'RJP-7' is a copy of the applicant's FOI request dated 13 March 2012. 14. On 3 May 2012, an officer of the Department, Ms Janet Creaner, decided to release, in part, the documents within the scope of the applicant's request. Annexed hereto and marked 'RJP-8' is a copy of Ms Creaner's Decision Record, Schedule of Documents and covering letter from the Department to the applicant dated 3 May 2012. 15. By letter to the Department dated 16 May 2012, the applicant requested internal review of Ms Creaner's decision of 3 May 2012. Annexed hereto and marked 'RJP-9' is a copy of the applicant's letter to the Department dated 16 May 2012. 16. By letter dated 13 August 2012, the applicant wrote to the Department advising that he had sought internal review of Ms Creaner's decision of 3 May 2012 but had heard nothing further from the Department. Annexed hereto and marked 'RJP-10' is a copy of the applicant's letter to the Department dated 13 August 2012. 17. By letter dated 21 August 2012, the Acting Manager of the Department's Freedom of Information Section in Melbourne, Mr Mark O'Rourke, advised the applicant that he had checked the Department's systems and had not been able to locate a request from the applicant in relation to an 'Internal Review' of Ms Creaner's decision of 3 May 2012. Mr O'Rourke asked the applicant to resend his request for an internal review so that processing could commence. Annexed hereto and marked 'RJP-11' is a copy of the Department's letter to the applicant dated 21 August 2012. 18. On 28 August 2012, the applicant filed an application to this Court dated 15 August 2012 to: Review the decision not to, and or the failure of the 1st Respondent and the 2nd Respondent to carry out an internal review of the decision of the 1st Respondent dated 03 May 2012. 19. On 31 August 2012, the Department received a letter from the applicant enclosing a copy of his letter dated 16 May 2012 requesting internal review of Ms Creaner's decision of 3 May 2012 and his application to this Court. Annexed hereto and marked 'RJP-12' is a copy of the applicant's letter to the Department dated 24 August 2012. 20. By letter from the Department dated 13 September 2012, I wrote to the applicant seeking clarification of what information he was seeking review of. Annexed hereto and marked 'RJP-13' is a copy of the letter from the Department to the applicant dated 13 September 2012. 21. Annexed hereto and marked 'RJP-14' is a copy of the applicant's response to the Department dated 20 September 2012. 22. Following internal review of Ms Creaner's decision of 3 May 2012, I made a decision on 28 September 2012 to refuse access to documents that fell within the scope of the applicant's previous request that were not assessed by Ms Creaner as there were no new documents that fell within the scope of the review. Annexed hereto and marked 'RJP-15' is a copy of the Department's letter to the applicant dated 28 September 2012 advising him of my decision. 41 What becomes clear from the evidence given by Mr Patterson is that the parties appear to have accepted that the Department was not aware of the request made by letter by the applicant dated 16 May 2012. As a result the applicant ultimately wrote to the Department by letter dated 20 September 2012 in the following terms: I renew my request for an internal review as outlined in earlier correspondence. 42 That letter also sought to explain exactly what documents were required upon the internal review. 43 It is noted the internal review was then conducted by Mr Patterson and by letter dated 28 September 2012 to the applicant, the applicant was advised of the outcome by Mr Patterson. The ultimate decision on internal review was as follows: Consequently, my decision is to refuse access to documents that fell within the scope of your previous request that were not assessed by Ms Creaner as there are no new documents that fall within the scope of this review. consideration 44 On the evidence before the Court it is unclear whether the respondents did receive the request for internal review at any time before the formally renewed request for internal review made by the applicant in his letter dated 20 September 2012. But even if the respondents should be taken to have received the applicant's letter dated 16 May 2012 soon thereafter, the ultimate outcome of the application is the same. It should be refused. 45 The FOI Act by Pt VI provides for internal review of decisions by agencies, other than decisions made personally by the principal officer of an agency or the responsible minister. Part VI was relevant in this case as the decision of 3 May 2012 did not fall into those other categories. 46 By s 54B(1) the application for internal review must be in writing and must be made, relevantly, within 30 days, or such further period as the agency allows, after the day the decision is notified to the applicant for internal review. 47 In this case, having regard to the apparent confusion about the receipt by the agency of the internal review application, it is apparent that the agency either treated the applicant's letter of 16 May 2012 as the first relevant request for internal review and undertook to complete an informal review notwithstanding the terms of s 54D discussed below, or treated the applicant's letter of 20 September 2012 as the first request and agreed to extend the time for doing so under s 54B. 48 Section 54C requires review to be completed on behalf of an agency within 30 days after the day on which the application was received by or on behalf of the agency. 49 As soon as the "renewed request" was made by letter dated 20 September 2012, the agency completed its internal review within seven working days. 50 Section 54D makes provision for a deemed affirmation of an original decision where the internal review is not completed within the 30-day period. 51 It might be observed that if one were to take the view that the respondents had relevantly received the request for internal review about 16 May 2012, then the deemed affirmation provided for by s 54D would have applied and there would be no grounds for the declaration now sought as a decision was made on the request by operation of s 54D. 52 But, in my view, that is all hypothetical because the parties actually agreed to deal with a "renewed" or fresh internal review request and that was duly done. In that sense, neither party was relying on s 54D. 53 In those circumstances there is simply no demonstrated breach of the FOI Act as the respondents did what was requested of them. 54 The applicant now has whatever rights he has under the FOI Act Pt VII to seek a merits review of the decision taken. 55 In all of these circumstances, where internal review has actually been provided and the primary objectives of the FOI Act have been realised to the advantage of the applicant, there is no basis to the claim to the declaration as to rights sought in the originating application by the applicant. 56 The applicant has received the internal review that he asked for. 57 Even if it were open to conclude the respondents failed to make a positive decision on internal review after receipt of the applicant's letter dated 16 May 2012, because of the deemed affirmation provision in s 54D of the FOI Act, there has already been a deemed affirmation of the earlier decision. There is no need for the Court to make any declaration about the failure to have completed an internal review within the 30-day period because the FOI Act itself provides for what happens in that event. 58 For these reasons the application was dismissed with costs from and after 20 September 2012. ORDERS 1. The name of the first respondent be changed to Commonwealth of Australia. 2. The proceeding be dismissed. 3. The applicant pay the respondents' costs of the proceeding from and after 20 September 2012 to be taxed if not agreed. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate: Dated: 23 October 2012